<PAGE>
As filed with the Securities and Exchange Commission on December 19, 1996
Registration No.
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_____________________
CENTERPOINT PROPERTIES CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 36-3910279
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification Number)
401 NORTH MICHIGAN AVENUE
30TH FLOOR
CHICAGO, ILLINOIS 60611
312-346-5600
(Address of registrant's principal executive offices)
JOHN S. GATES, JR.
PRESIDENT
CENTERPOINT PROPERTIES CORPORATION
401 NORTH MICHIGAN AVENUE, 30TH FLOOR
CHICAGO, ILLINOIS 60611
312-346-5600
(Name and address of agent for service)
______________________
COPIES TO:
RICHARD A. UNGARETTI, ESQ.
JAMES T. EASTERLING, ESQ.
Ungaretti & Harris
Three First National Plaza, Suite 3500
Chicago, Illinois 60602
312-977-4400
______________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: AS SOON AS
POSSIBLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AND FROM TIME
TO TIME THEREAFTER AS DETERMINED BY MARKET CONDITIONS.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ______________.
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. / / ______________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES AMOUNT TO BE AGGREGATE PRICE AGGREGATE AMOUNT OF
BEING REGISTERED REGISTERED(1) PER SECURITY(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities.......
Preferred Stock, $.001 par
value per share........(3) $200,000,000 (4) $200,000,000 $60,606.06
Common Stock, $.001 par
value per share........(5)
Securities Warrants....(6)
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency of currencies.
(2) Estimated solely for purposes of calculating the registration fee. The
aggregate maximum offering price of all Securities issued pursuant to this
Registration Statement will not exceed $200,000,000.
(3) Also includes such indeterminate number of shares of Preferred Stock as may
be issued upon conversion of or in exchange for any Debt Securities that
provide for conversion or exchange into Preferred Stock. No separate
consideration will be received for the Preferred Stock issued upon
conversion of or in exchange for Debt Securities.
(4) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(5) Also includes such indeterminate number of shares of Common Stock as may be
issued upon conversion of or in exchange for any Debt Securities or
Preferred Stock that provide for conversion or exchange into Common Stock.
No separate consideration will be received for the Common Stock issued upon
conversion of or in exchange for Debt Securities or Preferred Stock.
(6) Securities Warrants may be sold separately or with Debt Securities,
Preferred Stock or Common Stock.
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus included in this Registration Statement
is a combined Prospectus which also relates to Registration Statement No. 33-
93074, previously filed by the Registrant on Form S-3 (Post-Effective Amendment
No. 1 was declared effective on January 26, 1996), as to which Common Stock and
Securities Warrants having an Aggregate Offering Price of $115,463,125 remain
outstanding (for which a registration fee of $39,814.93 was paid). The amount
of Securities being registered hereunder, together with the remaining Securities
registered under Registration Statement No. 33-93074, represents the maximum
amount of Securities which are expected to be offered for sale.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
<PAGE>
PROSPECTUS
$200,000,000
CENTERPOINT PROPERTIES CORPORATION
DEBT SECURITIES, COMMON STOCK, PREFERRED STOCK, SECURITIES WARRANTS
_________________
CenterPoint Properties Corporation (the "Company") may from time to time
offer in one or more series its (i) senior debt securities ("Senior Debt
Securities", (ii) subordinated debt securities ("Subordinated Debt
Securities") (Senior Debt Securities and Subordinated Debt Securities being
collectively referred to herein as "Debt Securities"), (iii) common stock,
$.001 par value per share ("Common Stock"), (iv) preferred stock, par value
$.001 per share ("Preferred Stock"), and (v) warrants exercisable for Debt
Securities, Common Stock or Preferred Stock ("Securities Warrants"), in
amounts, at prices and on terms to be determined at the time of offering.
The Senior Debt Securities, Subordinated Debt Securities, Common Stock,
Preferred Stock and Securities Warrants (collectively referred to herein as
the "Securities") may be offered separately or together, in separate series,
in amounts, at prices and on terms to be described in one or more supplements
to this Prospectus (a "Prospectus Supplement").
The aggregate public offering price for Securities offered by the
Company will be up to $200,000,000 (or the equivalent based on the applicable
exchange rate at the time of the offering).
The specific terms of the Securities with respect to which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, any terms for redemption at the option of the Company or
repayment at the option of the holder, any terms for any sinking fund
payment, covenants and any initial public offering price; (ii) in the case of
Common Stock, any initial public offering price; (iii) in the case of
Preferred Stock, the specific title and stated value, any dividend,
liquidation, redemption, conversion, voting and other rights, and any initial
public offering price; and (iv) in the case of Securities Warrants, the
specific title and aggregate number, the issue price and the exercise price.
In addition, such specific terms may include limitations on direct or
beneficial ownership and restrictions on transfer of the Securities, in each
case as may be appropriate to preserve the status of the Company as a real
estate investment trust ("REIT") for U.S. federal income tax purposes.
The applicable Prospectus Supplement also will contain information,
where applicable, about certain U.S. federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered directly by the Company, through agents
designated from time to time by the Company, or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
Securities, their names, and any applicable purchase price, fee, commission
or discount arrangement with, between or among them, will be set forth, or
will be calculable from the information set forth, in an accompanying
Prospectus Supplement. See "Plan of Distribution." No Securities may be
sold without delivery of a Prospectus Supplement describing the method and
terms of the offering of such Securities.
SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS FOR CERTAIN FACTORS
AND MATERIAL RISKS IN CONNECTION WITH THE PURCHASE OF THE SECURITIES.
________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
________________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
December 19, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and other applicable legal
or New York Stock Exchange, Inc. ("NYSE") requirements, pursuant to which the
Company files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company under the Exchange Act may
be examined without charge at, or copies obtained upon payment of prescribed
fees from, the Public Reference Section of the Commission at Judiciary Plaza
Office Building, 450 Fifth Street, N.W., Washington, D.C. 20549 and will also be
available for inspection and copying at the regional offices of the Commission
located at 13th Floor, 7 World Trade Center, New York, New York 10048 and at
Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, Illinois 60661-
2511, and at the NYSE, 20 Broad Street, New York, New York 10005. Electronic
filings made through the Electronic Data Gathering, Analysis and Retrieval
System are publicly available through the Commission's Web Site
(http://www.sec.gov).
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement"), of which this Prospectus is a part, under the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, with respect to the Securities offered pursuant to this
Prospectus. This Prospectus does not contain all of the information set forth
in the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. For further information with
respect to the Company and the Securities, reference is made to the Registration
Statement, which may be inspected and copied in the manner and at the sources
described above.
Statements contained in this Prospectus as to the contents of any contract
or other document that is filed as an exhibit to the Registration Statement are
not necessarily complete, and each such statement is qualified in its entirety
by reference to the full text of such contract or document.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996;
3. The Company's Current Report on Form 8-K filed with the Commission on
July 1, 1996;
4. The Company's Current Report on Form 8-K filed with the Commission on
October 3, 1996, as amended by Form 8-K/A filed with the Commission on
November 27, 1996; and
5. The description of the Company's Common Stock set forth in the
Company's Post-Effective Amendment No. 1 to Form S-3 registration
statement filed with the Commission on March 22, 1995 (File No. 33-
89630).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of all Securities offered hereby shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Prospectus except as so modified or
superseded.
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The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the documents
that have been or may be incorporated herein by reference (excluding exhibits to
such information unless such exhibits are specifically incorporated by reference
into the information that this Prospectus incorporates). Requests for such
information should be directed to CenterPoint Properties Corporation, 401 North
Michigan, 30th Floor, Chicago, Illinois 60611; Attention: Paul S. Fisher,
Secretary; telephone (312) 346-5600.
THE COMPANY
The Company is a fully integrated real estate company focused on the
acquisition, development, redevelopment, management and ownership of
warehouse/industrial property located in Greater Chicago (defined as the area
within a 150-mile radius of Chicago, including Milwaukee, Wisconsin and South
Bend, Indiana). The Company has elected and qualified for REIT status since
January 1, 1994. See "Federal Income Tax Considerations Relating to the
Company's REIT status -- Qualification as a REIT; Opinion of Counsel."
The Company, a Maryland corporation, was founded in 1984 and completed its
initial public offering of securities in December 1993. As of September 30,
1996, the Company owned and managed a portfolio of 73 warehouse/industrial
properties, containing approximately 13.8 million square feet of space, and
believes it is the largest owner and operator of warehouse/industrial property
in Greater Chicago. The Company also owns and manages three retail properties
and one apartment property. The Company's properties are currently 98% leased,
with the warehouse/industrial properties occupied by 129 tenants in diverse
industries and no tenant accounting for the lease of more than 10% of the total
square footage of the Company's warehouse/industrial portfolio. Substantially
all of the Company's properties have been constructed or renovated during the
past ten years.
The Company believes that Greater Chicago offers significant opportunities
for investment in and ownership of warehouse/industrial property. Greater
Chicago, due to its central location and extensive air, roadway, rail, and water
transportation infrastructure, supports a diverse industrial and service
industry base. Based on published statistics regarding square feet of space
owned and managed by other firms and publicly available information filed with
the Securities and Exchange Commission, as well as its knowledge and experience
in the market, the Company believes it is the largest owner and operator of
warehouse/industrial property in Greater Chicago.
The Company believes that investment in warehouse/industrial property
offers attractive returns and stable cash flow. Published statistics indicate
that total returns from warehouse/industrial properties have been among the
highest of any commercial property type in each of the past 15 years. The
Company believes that cash flow from warehouse/industrial property investments
is generally more predictable than cash flow from other property types because:
(i) relatively short construction periods discourage speculative building; (ii)
lower capital expenditures are required to sustain rental income due to the
adaptable character of warehouse/industrial property; and (iii) tenant renewal
rates are higher due to the significant cost and disruption to tenant operations
resulting from relocations. Moreover, leases for warehouse/industrial
properties provide generally for rent growth through contractual rent increases
or rents tied to certain indices such as the Consumer Price Index and are
generally structured as net leases, providing for the pass through to tenants of
all operating and real estate tax expenses.
The Company's objective is to maximize stockholder value by pursuing a
growth strategy consisting of (i) intensive management of the Company's existing
properties, and (ii) the acquisition of existing leased properties, build-to-
suit projects and properties suitable for redevelopment.
The Company's principal executive office is located at 401 North Michigan
Avenue, 30th Floor, Chicago, Illinois 60611, and its telephone number is (312)
346-5600.
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RISK FACTORS
Prospective investors should carefully consider, among other factors, the
matters described below.
LIMITED GEOGRAPHICAL AND PROPERTY-TYPE DIVERSIFICATION
All of the Company's properties are located in Greater Chicago, and
substantially all of the Company's properties are warehouse/industrial
properties. While the Company believes that its focus on this geographical area
and property type is an advantage, the Company's performance and its ability to
make distributions to stockholders could be adversely affected by unfavorable
economic and/or warehouse/industrial real estate conditions in Greater Chicago.
RISKS OF DEBT FINANCING
The Company is subject to the risks normally associated with the incurrence
of debt financing, including the risks that (i) the Company will be unable to
meet required payments of principal and interest, (ii) existing indebtedness
will not be able to be refinanced or, if refinanced, the terms of such
refinancing will not be as favorable as the original terms of such indebtedness
and (iii) necessary capital expenditures for such purposes as renovations and
other improvements will not be able to be financed or, if financed, will not be
able to be financed on terms favorable to the Company. If a property is
mortgaged to secure payment of indebtedness and the Company is unable to meet
mortgage payments, the property could be foreclosed upon by the mortgagee with a
consequent loss of income and asset value to the Company.
The Company intends to continue its policy of maintaining a ratio of debt
(excluding the Company's 8.22% Convertible Subordinated Debentures due 2004 (the
"Debentures")) to total market capitalization of the Company of less than 50%.
However, the Articles of Incorporation do not contain any limitations on the
ratio of debt to total market capitalization. Accordingly, the Board of
Directors could alter or eliminate the current limitation on borrowing without
the approval of the Company's stockholders. If this policy were changed, the
Company could become more highly leveraged, resulting in an increase in debt
service that could adversely affect the Company's Funds from Operations and its
ability to make expected distributions to stockholders, as well as increase the
risk of default on the Company's other indebtedness and any borrowings incurred
under the Company's lines of credit.
Certain of the Company's debt now provides, and may in the future provide,
for variable interest rates. To the extent that the Company has variable
interest rate debt, the Company is exposed to the risk of interest rate
fluctuations and, consequently, an increase in interest expense. An increase in
interest expense could have a material adverse impact on the Company's
operations.
LIMITATION ON OWNERSHIP OF SHARES
In order for the Company to qualify as a REIT under the Internal Revenue
Code of 1986, as amended (the "Code"), not more than 50% in value of the
Company's outstanding stock may be owned, directly or indirectly, by five or
fewer individuals (as defined in the Code to include certain entities). Due to
these limitations on the concentration of ownership of stock of a REIT,
ownership of more than 9.8% of the value of the outstanding shares of stock by
any single stockholder has been restricted in the Articles of Incorporation,
with the exception of the ownership of the Common Stock by the Company's former
parent company, CRP-London.
Recent tax legislation relaxed the rules concerning ownership of stock in a
REIT by certain domestic pension trusts. The Articles of Incorporation do not
implement this change in the tax law. Under the Articles of Incorporation,
domestic pension funds are subject to the restriction on ownership of more than
9.8% of the value of the outstanding stock.
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These ownership limits, as well as the ability of the Company to issue
additional shares of its Common Stock and Preferred Stock, may discourage a
change of control of the Company and may also (i) deter tender offers for the
Common Stock, which offers may be advantageous to stockholders, and (ii) limit
the opportunity for stockholders to receive a premium over then prevailing
market prices for their Common Stock that might otherwise exist if an investor
were attempting to assemble a block of Common Stock or otherwise effect a change
of control of the Company. See "Description of Capital Stock -- Restrictions on
Transfer."
CHANGES IN INVESTMENT AND FINANCING OBJECTIVES
The investment and financing objectives of the Company, and its objectives
with respect to certain other activities, including without limitation, the
objective that the Company continue to qualify as a REIT, will be determined by
the Board of Directors. Although the Board of Directors has no present
intention to do so, the Board may revise current objectives of the Company at
any time and from time to time in its sole discretion. Accordingly,
stockholders will have no direct control over changes in the objectives of the
Company.
REAL ESTATE INVESTMENT CONSIDERATIONS
GENERAL. The business of owning and investing in real estate is highly
competitive and is subject to numerous inherent risks, including adverse changes
in general or local economic conditions and/or specific industry segments, real
estate values, rental rates, interest rates, real estate tax rates and other
operating expenses, the possibility of competitive overbuilding and of the
Company's inability to obtain or maintain high levels of occupancy in the
Company's properties, tenant defaults, unfavorable changes in governmental rules
and fiscal policies (including rent control legislation), acts of God and other
factors which are beyond the control of the Company. In addition to affecting
the profitability of operations, these and other factors could impact the
marketability of the Company's properties.
In addition to the general risks of ownership and investment in real
property, the Company will be subject to other risks in connection with the
leasing, redevelopment and improvement of properties, such as the risk that the
properties may operate at a cash deficit during the redevelopment and/or lease-
up period, and the risk of a contractor's inability to control costs and to
conform to plans, specifications and timetables, which may in turn be affected
by strikes, weather, government regulations and other conditions beyond the
contractor's control. The benefits anticipated from such transactions,
therefore, may be reduced or may not materialize. The Company may in the future
acquire properties in need of additional leasing activity, rehabilitation or
improvement.
COMPETITION. All of the Company's existing properties are, and all of the
properties that it may acquire in the future are expected to be, located in
areas that include numerous other warehouse/industrial, retail or apartment
properties, many of which may be deemed to be more suitable to any potential
tenant. The resulting competition could have a material adverse effect on the
Company's ability to lease its properties and to increase the rentals charged on
existing leases.
ENVIRONMENTAL MATTERS. All of the Company's existing properties have been,
and all properties the Company may acquire in the future will be, subjected to a
Phase I or similar environmental assessment. The purpose of a Phase I
environmental assessment is to determine if past and present uses of a property
indicate the potential for soil or groundwater contamination or if other
environmental conditions might affect the value of or future uses of the
property. Phase I environmental assessments generally include the following:
visual inspection of environmental conditions at and around the property; review
of available land use records; interviews with the property representatives;
examination of information from environmental agencies; and a walk through
survey for suspected asbestos containing or other toxic materials. These
environmental assessments have not revealed any environmental condition with
respect to any of the Company's existing properties that the Company believes
could have a material adverse effect upon the business or assets of the Company.
However, no assurance can be given that environmental assessments have revealed
or will reveal all potentially negative environmental conditions that may exist.
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Under various federal, state and local laws, ordinances and regulations, an
owner or operator of real estate is potentially liable to governmental entities
or third parties for property damage and the costs of investigation, removal or
remediation of contamination caused by certain hazardous or toxic substances on
or in such property. Such laws often impose liability without regard to whether
the owner knew of, or was responsible for, the presence of such hazardous or
toxic substances. The presence of such substances, or the failure to properly
remove such substances or remediate any contamination caused thereby, may
adversely affect the owner's ability to sell or rent such property or to borrow
using such property as collateral. Persons who arrange for the disposal of
hazardous substances at a treatment, storage or disposal facility may be liable
for the cost of removal or remediation of such substances at such treatment,
storage or disposal facility, whether or not such facility is owned or operated
by such person. Certain environmental laws impose liability for release of
asbestos-containing materials into the air, and third parties may seek recovery
from owners or operators of real properties for personal injury associated with
such materials. In connection with the ownership, operation, management and
development of properties, the Company may be considered the owner or operator
of such properties or as having arranged for the disposal of hazardous or toxic
substances and, therefore, may be potentially liable for removal or remediation
costs, as well as certain other related costs, including governmental fines and
damages for injuries to persons and properties.
UNINSURED LOSS. The Company maintains comprehensive liability, fire, flood
(where appropriate), extended coverage and rental loss insurance with respect to
its properties, with limits and deductibles customary in the industry. Certain
types of losses, however, may be either uninsurable or not economically
insurable, such as those due to earthquakes, riots or acts of war. Should an
uninsured loss occur, the Company could lose both its investment in and
anticipated profits and cash flow from a property and would continue to be
obligated on any mortgage indebtedness or other obligations related to the
property. Any such loss could adversely affect the Company.
COST OF COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT. Under the
Americans with Disabilities Act of 1990 (the "ADA"), all public accommodations
are required to meet certain federal requirements related to access and use by
disabled persons. Existing warehouse/industrial properties generally are exempt
from the provisions of ADA but may be subject to provisions requiring that
buildings be made accessible to people with disabilities. Compliance with the
ADA could require removal of access barriers, and non-compliance could result in
the imposition of fines by the federal government or an award of damages to
private litigants. While the amounts of such compliance costs, if any, are not
currently ascertainable, they are not expected to have an adverse effect on the
Company.
CERTAIN RISKS RELATED TO REIT STATUS AND STRUCTURE
TAXATION AS A CORPORATION. The Company has elected and qualified for REIT
status since January 1, 1994. Although the Company believes that it has
operated in such a manner as to qualify as a REIT, no assurance can be given
that the Company will remain so qualified. Qualification as a REIT involves the
satisfaction of numerous requirements (some on an annual and quarterly basis)
established under highly technical and complex Code provisions for which there
are only limited judicial or administrative interpretations, and involves the
determination of various factual matters and circumstances not entirely within
the Company's control.
If the Company were to fail to qualify as a REIT in any taxable year, the
Company would be subject to federal income tax (including any applicable
alternative minimum tax) on its taxable income at corporate rates. Moreover,
unless entitled to relief under certain statutory provisions, the Company would
also be disqualified from treatment as a REIT for the four taxable years
following the year during which disqualification occurred. This treatment would
reduce the net earnings of the Company available for investment or distribution
to stockholders because of the additional tax liability to the Company for the
years involved. In addition, distributions to stockholders would no longer be
required to be made.
LACK OF CONTROL OF CERTAIN SUBSIDIARY CORPORATIONS. The Company expects to
derive income from certain activities (such as management of properties owned by
third parties) in excess of amounts the Company could earn directly or through
an entity controlled by the Company without jeopardizing its REIT status.
Accordingly, the Company owns a small percentage of the voting stock of
corporations carrying on such activities, and the Company
6
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has limited ability to influence the day-to-day management of such corporations,
even though the Company owns stock representing most of the economic interest in
such corporations.
OTHER TAX LIABILITIES. Even as a REIT, the Company will be subject to
certain federal, state and local taxes on its income and property.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to invest the net proceeds of any sale of Securities for general
business purposes, including the development, redevelopment and acquisition of
additional properties and repayment of outstanding debt.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratios of earnings to fixed charges for the years ended
December 31, 1994 and 1995 were 1.19 and 1.63, respectively, and the Company's
ratios of earnings to fixed charges for the nine months ended September 30, 1995
and 1996 were 1.49 and 2.27, respectively. The ratios of earnings to fixed
charges for the years ended December 31, 1991 through December 31, 1993 were
less than one-to-one.
The ratio of earnings to fixed charges means the ratio of pretax income
from continuing operations (with certain adjustments) to the total of: (i)
interest, (ii) amortization of debt expense and (iii) such portion of rental
expense as can be demonstrated to be representative of the interest factor in
the particular case.
The Company issued Series A Preferred Stock in September, 1995, which was
converted into Class B Common Stock in May, 1996. The Company's ratios of
earnings to combined fixed charges and Preferred Stock dividends for the year
ended December 31, 1995 was 1.51 and the Company's ratio of earnings to combined
fixed charges and Preferred Stock dividends for the nine months ended September
30, 1995 and September 30, 1996 was 1.48 and 1.71, respectively. The Company
had not issued any Preferred Stock prior to 1995; therefore, the ratios of
earnings to combined fixed charges and Preferred Stock dividends for years prior
to 1995 are unchanged from the ratios of earnings to fixed charges for such
years as set forth above.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which this Prospectus and any applicable Prospectus
Supplement may relate. The particular terms of the Debt Securities being
offered and the extent to which such general provisions may apply will be set
forth in the applicable Indenture or in one or more indentures supplemental
thereto and described in a Prospectus Supplement relating to such Debt
Securities.
The Senior Debt Securities will be issued under an Indenture, as amended or
supplemented from time to time (the "Senior Indenture"), between the Company and
a trustee to be selected by the Company (the "Senior Trustee"), and the
Subordinated Debt Securities will be issued under an Indenture, as amended and
supplemented from time to time (the "Subordinated Indenture"), between the
Company and a trustee to be selected by the Company (the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are each
referred to herein individually as an "Indenture," and they are together
referred to herein as the "Indentures;" the Senior Trustee and the Subordinated
Trustee are each referred to herein individually as a "Trustee," and they are
together referred to herein as the "Trustees." Forms of the Senior Indenture
and of the Subordinated Indenture have been filed as exhibits to the
Registration Statement of which this Prospectus is a part and will be available
for inspection at the corporate office of the Senior Trustee and Subordinated
Trustee, respectively, or as described above under "Available Information." The
Indentures will be subject to, and governed by, the Trust Indenture Act of 1939,
as amended. The Company will execute the applicable Indenture when and if the
Company issues Debt Securities. The statements made hereunder relating to the
Indentures and the Debt Securities to be issued thereunder are summaries of
certain provisions thereof and do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all provisions of the
Indentures and such Debt Securities. Unless otherwise indicated,
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all Section references appearing herein are to Sections of the Indentures and
capitalized terms used but not otherwise defined herein will have the meanings
set forth in the Indentures.
PROVISIONS APPLICABLE TO SENIOR DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES
GENERAL. The Debt Securities will be direct, unsecured obligations of the
Company and may be either Senior Debt Securities or Subordinated Debt
Securities.
The indebtedness represented by the Senior Debt Securities will rank pari
passu with other Senior Debt (as defined under "Provisions Applicable Solely to
Subordinated Debt Securities -- General") of the Company that may be outstanding
from time to time. The payment of principal of (and premium, if any) and
interest on indebtedness represented by Subordinated Debt Securities will be
subordinated, to the extent and in the manner provided in the Subordinated
Indenture, in right of payment to the prior payment in full of the Senior Debt
of the Company, including the Senior Debt Securities, as described under the
heading "Provisions Applicable Solely to Subordinated Debt Securities --
Subordination."
Each Indenture will provide that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in the
applicable Indenture or as may be established in one or more indentures
supplemental thereto. All Debt Securities of 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 of the Debt Securities of such series, for issuances
of additional Debt Securities of such series (Section 301).
Each Indenture will provide that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities. Any
Trustee under an Indenture may resign or be removed with respect to one or more
series of Debt Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 608). In the event that two or more persons are
acting as Trustee with respect to different series of Debt Securities, each such
Trustee will be a trustee of a trust under the applicable Indenture separate and
apart from the trust administered by any other Trustee thereunder, and, except
as otherwise indicated herein, any action described herein to be taken by each
Trustee may be taken by each such Trustee with respect to, and only with respect
to, the one or more series of Debt Securities for which it is Trustee under the
applicable Indenture.
The Prospectus Supplement relating to any series of Debt Securities being
offered will contain the specific terms thereof, including, without limitation:
(1) the title of such Debt Securities;
(2) the classification of such Debt Securities as Senior Debt Securities
or Subordinated Debt Securities;
(3) The aggregate principal amount of such Debt Securities and any limit
on such aggregate principal amount;
(4) The percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof;
(5) If convertible in whole or in part into Common Stock or Preferred
Stock, the terms on which such Debt Securities are convertible,
including the initial conversion price or rate (or method for
determining the same), the portion that is convertible and the
conversion period, and any applicable limitations on the ownership or
transferability of the Common Stock or Preferred Stock receivable on
conversion;
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(6) The date or dates, or the method for determining such date or dates,
on which the principal of such Debt Securities will be payable;
(7) The rate or rates (which may be fixed or variable), or the method by
which such rate or rates will be determined, at which such Debt
Securities will bear interest, if any;
(8) The date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the dates on which any such
interest will be payable, the Regular Record Dates for such Interest
Payment Dates, or the method by which such dates will be determined,
the person to whom such interest will be payable, and the basis upon
which interest will be calculated if other than that of a 360-day year
of twelve 30-day months;
(9) The place or places where the principal of (and premium or Make-Whole
Amount, if any) and interest and Additional Amounts, if any, on such
Debt Securities will be payable, where such Debt Securities may be
surrendered for conversion or registration of transfer or exchange and
where notices or demands to or upon the Company in respect of such
Debt Securities and the applicable Indenture may be served;
(10) The period or periods within which, the price or prices at which and
the other terms and conditions upon which such Debt Securities may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have such an option;
(11) The obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities 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 and dates on which, the price or
prices at which and the other terms and conditions upon which such
Debt Securities will be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(12) If other than U.S. dollars, the currency or currencies in which such
Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating thereto;
(13) Whether the amount of payments of principal of (and premium or Make-
Whole Amount, if any) or interest and Additional Amounts, if any, on
such Debt Securities may be determined with reference to an index,
formula or other method (which index, formula or method may, but need
not be, based on a currency, currencies, currency unit or units or
composite currency or currencies) and the manner in which such amounts
will be determined;
(14) Any additions to, modifications of or deletions from the terms of such
Debt Securities with respect to Events of Default or covenants set
forth in the applicable Indenture;
(15) Whether such Debt Securities will be issued in certificated or book-
entry form;
(16) Whether such Debt Securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
(17) The applicability, if any, of the defeasance and covenant defeasance
provisions of Article Fourteen of the applicable Indenture;
(18) If such Debt Securities are to be issued upon the exercise of
Warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered;
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(19) Whether and under what circumstances the Company will pay any
Additional Amounts on such Debt Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Debt Securities in lieu of making such
payment; and
(20) Any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture (Section 301).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special federal income tax, accounting
and other considerations applicable to Original Issue Discount Securities will
be described in the applicable Prospectus Supplement.
The Indentures will not contain any provisions that would limit the ability
of the Company to incur indebtedness or that would afford Holders of Debt
Securities protection in the event of a highly leveraged or similar transaction
involving the Company or in the event of a change of control. Restrictions on
ownership and transfers of the Company's Common Stock and Preferred Stock are
designed to preserve its status as a REIT and, therefore, may act to prevent or
hinder a change of control. See "Description of Capital Stock -- Restrictions
on Transfer" and "Risk Factors -- Limitation on Ownership of Shares." Reference
is made to the applicable Prospectus Supplement for information with respect to
any deletions from, modifications of or additions to the Events of Default or
covenants of the Company that are described below, including any addition of a
covenant or other provision providing event risk or similar protection.
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER. Unless otherwise
described in the applicable Prospectus Supplement, the Debt Securities of any
series will be issuable in denominations of $1,000 and integral multiples
thereof (Section 302).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, on any series of Debt Securities will be payable
at the corporate trust office of the applicable Trustee, the address of which
will be stated in the applicable Prospectus Supplement; provided that, at the
option of the Company, payment of interest may be made by check mailed to the
address of the person entitled thereto as it appears in the applicable register
for such Debt Securities or by wire transfer of funds to such person at an
account maintained within the United States (Sections 301, 305, 306, 307 and
1002).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name such Debt Security 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
applicable Trustee, notice whereof will be given to the Holder of such Debt
Security not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more completely described in
the applicable Indenture (Section 307).
Subject to certain limitations imposed upon Debt Securities issued in book-
entry form, the Debt Securities of any series will be exchangeable for other
Debt Securities of the same series and of a like aggregate principal amount and
tenor of different authorized denominations upon surrender of such Debt
Securities at the corporate trust office of the applicable Trustee. In
addition, subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series may be surrendered for
conversion or registration of transfer or exchange thereof at the corporate
trust office of the applicable Trustee. Every Debt Security surrendered for
conversion, registration of transfer or exchange must be duly endorsed or
accompanied by a written instrument of transfer. No service charge will be made
for any registration of transfer or exchange of any Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section 305). If the
applicable Prospectus Supplement refers to any transfer agent (in addition to
the applicable Trustee) initially designated by the Company with respect to any
series of Debt Securities,
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the Company may at any time rescind the designation of any such transfer agent
or approve a change in the location through which any such transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
place of payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 1002).
Neither the Company nor any Trustee will be required to (i) issue, register
the transfer of or exchange Debt Securities of any series during a period
beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; (iii) exchange any Bearer Security so selected for redemption, except to
exchange such Bearer Security for a Registered Security of that series of like
tenor when immediately surrendered for redemption; or (iv) issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such Debt
Security not to be so repaid (Section 305).
MERGER, CONSOLIDATION OR SALE. The Company will be permitted to
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other entity, provided that (a) either the
Company will be the continuing entity, or the successor entity (if other than
the Company) formed by or resulting from any such consolidation or merger or
which has received the transfer of such assets will expressly assume payment of
the principal of (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions
contained in each Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness that becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under the Indentures, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, has occurred and be continuing; and
(c) an officer's certificate and legal opinion covering such conditions will be
delivered to each Trustee (Sections 801 and 803).
CERTAIN COVENANTS.
EXISTENCE. Except as described above under "Merger, Consolidation or
Sale," the Company will be required to 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 Company will not be required to
preserve any right or franchise if it determines that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Holders of the Debt
Securities (Section 1006).
MAINTENANCE OF PROPERTIES. The Company will be required to cause all of
its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, the Company and its Subsidiaries will
not be prevented from selling or otherwise disposing for value its properties in
the ordinary course of business (Section 1007).
INSURANCE. The Company will be required to, and will be required to cause
each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value with
financially sound and reputable insurers and, if described in the applicable
Prospectus Supplement, having a specified rating from a recognized insurance
rating service (Section 1008).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will be required to pay or
discharge or cause to be paid or discharged, before the same becomes 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 Company 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 Company or any
Subsidiary; provided, however, that the Company will not be required to pay or
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discharge or cause to be paid or discharged any such tax, assessment, charge or
claim (i) whose amount, applicability or validity is being contested in good
faith by appropriate proceedings or (ii) for which the Company has set apart and
maintains an adequate reserve (Section 1009).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is subject
to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents (the "Financial Information") which the
Company would have been required to file with the Commission pursuant to such
Sections 13 or 15(d) if the Company were so subject, such documents to be filed
with the Commission on or prior to the respective dates (the "Required Filing
Dates") by which the Company would have been required so to file such documents
if the Company were so subject. The Company will also in any event (x) within
15 days of each Required Filing Date (i) transmit by mail to all Holders of Debt
Securities, as their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports and quarterly reports
and (ii) file with the Trustees copies of the Financial Information, and (y) if
filing such documents by the Company with the Commission is not permitted under
the Exchange Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder (Section 1010).
ADDITIONAL COVENANTS AND/OR MODIFICATIONS TO THE COVENANTS DESCRIBED ABOVE.
Any additional covenants of the Company and/or modifications to the covenants
described above with respect to any Debt Securities or series thereof, including
any covenants relating to limitations on incurrence of indebtedness or other
financial covenants, will be set forth in the applicable Indenture or an
indenture supplemental thereto and described in the Prospectus Supplement
relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER. Each Indenture will provide that the
following events are "Events of Default" with respect to any series of Debt
Securities issued thereunder: (i) default for 30 days in the payment of any
installment of interest on any Debt Security of such series; (ii) default in the
payment of principal of (or premium or Make-Whole Amount, if any, on) any Debt
Security of such series at its Maturity; (iii) default in making any sinking
fund payment as required for any Debt Security of such series; (iv) default in
the performance or breach of any other covenant or warranty of the Company
contained in the applicable Indenture (other than a covenant added to the
Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), that continues for 60 days after written
notice as provided in the applicable Indenture; (v) default in the payment of an
aggregate principal amount exceeding $10,000,000 of any indebtedness of the
Company or any mortgage, indenture or other instrument under which such
indebtedness is issued or by which such indebtedness is secured, such default
having occurred after the expiration of any applicable grace period and having
resulted in the acceleration of the maturity of such indebtedness, but only if
such indebtedness is not discharged or such acceleration is not rescinded or
annulled within a specified period of time; (vi) certain events of bankruptcy,
insolvency or reorganization, or court appointment of a receiver, liquidator or
trustee of the Company or any Significant Subsidiary or either of its property;
and (vii) any other Event of Default provided with respect to a particular
series of Debt Securities (Section 501). The term "Significant Subsidiary" will
mean each significant subsidiary (as defined in Regulation S-X promulgated under
the Securities Act) of the Company.
If an Event of Default under any Indenture with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Trustee or the Holders of not less than 25% of the
principal amount of the Outstanding Debt Securities of that series will have the
right to declare the principal amount (or, if the Debt Securities of that series
are Original Issue Discount Securities or indexed securities, such portion of
the principal amount as may be specified in the terms thereof) of all the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the applicable Trustee if given by the Holders).
However, at any time after such a declaration of acceleration with respect to
Debt Securities of such series (or of all Debt Securities then Outstanding under
any Indenture, as the case may be) has been made, but before a judgment or
decree for payment of the money due has been obtained by the applicable Trustee,
the Holders of not less than a majority in principal amount of Outstanding Debt
Securities of such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) may rescind and annul such declaration
and its consequences if (a) the Company has deposited with the applicable
Trustee all required payments of the principal of (and premium, if any) and
interest on the Debt Securities of such series (or of all Debt
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Securities then Outstanding under the applicable Indenture, as the case may be),
plus certain fees, expenses, disbursements and advances of the applicable
Trustee and (b) all events of default, other than the non-payment of accelerated
principal (or specified portion thereof), with respect to Debt Securities of
such series (or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) have been cured or waived as provided in such
Indenture (Section 502). Each Indenture also will provide that the Holders of
not less than a majority in principal amount of the Outstanding Debt Securities
of any series (or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series or (y) in respect of a covenant or provision contained in the applicable
Indenture that cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security affected thereby (Section 513).
Each Trustee will be required to give notice to the Holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default has been cured or waived; provided, however, that such Trustee may
withhold notice to the Holders of any series of Debt Securities of any default
with respect to such series (except a default in the payment of the principal of
(or premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if Responsible Officers of such Trustee consider such withholding to be
in the interest of such Holders (Section 601).
Each Indenture will provide that no Holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the cases of failure of
the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an Event of Default from the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it (Section 507). This provision will not prevent, however, any
Holder of Debt Securities from instituting suit for the enforcement of payment
of the principal of (and premium or Make-Whole Amount, if any) and interest on,
and any Additional Amounts in respect of such Debt Securities at the respective
due dates thereof (Section 508).
Subject to provisions in each Indenture relating to its duties in case of
default, no Trustee will be under any obligation to exercise any of its rights
or powers under an Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under such Indenture, unless such
Holders have offered to the Trustee thereunder reasonable security or indemnity
(Section 602). The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series (or of all Debt Securities then
Outstanding under an Indenture, as the case may be) will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the applicable Trustee, or of exercising any trust or power
conferred upon such Trustee. However, a Trustee may refuse to follow any
direction which is in conflict with any law or the applicable Indenture, which
may involve such Trustee in personal liability or which may be unduly
prejudicial to the Holders of Debt Securities of such series not joining therein
(Section 512).
Within 120 days after the close of each fiscal year, the Company will be
required to deliver to each Trustee a certificate, signed by one of several
specified officers, stating whether or not such officer has knowledge of any
default under the applicable Indenture and, if so, specifying each such default
and the nature and status thereof (Section 1011).
MODIFICATION OF THE INDENTURES. Modifications and amendments of an
Indenture will be permitted to be made only with the consent of the Holders of
not less than a majority in principal amount of all Outstanding Debt Securities
issued under such Indenture which are affected by such modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holder of each such Debt Security affected thereby,
(a) change the stated maturity of the principal of, or any installment of
interest (or premium or Make-Whole Amount, if any) on, any such Debt Security;
(b) reduce the principal amount of, or the rate or amount of interest on or any
Additional Amounts payable in respect thereof, or any premium payable on
redemption of, any such Debt Security, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon declaration
of acceleration of the maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the Holder of any such Debt Security;
(c) change the place of payment, or the coin
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or currency, for payment of principal or premium, if any, or interest on any
such Debt Security; (d) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Debt Security; (e) reduce the
above-stated percentage of Outstanding Debt Securities of any series necessary
to modify or amend the applicable Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the applicable Indenture; (f) if
Subordinated Debt Securities, modify any of the provisions of the Subordinated
Indenture relating to the subordination of such Subordinated Debt Securities in
a manner adverse to the Holders thereof; or (g) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the Holder of such Debt Security
(Section 902).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities of each series affected thereby will have the right to waive
compliance by the Company with certain covenants in such Indenture (Section
1013).
Modifications and amendments of each Indenture will be permitted to be made
by the Company and the respective Trustee thereunder without the consent of any
Holder of Debt Securities for any of the following purposes: (i) to evidence
the succession of another person to the Company as obligor under such Indenture;
(ii) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Debt Securities or to surrender any right or power
conferred upon the Company in an Indenture; (iii) to add Events of Default for
the benefit of the Holders of all or any series of Debt Securities; (iv) to add
or change any provisions of an Indenture to facilitate the issuance of, or to
liberalize certain terms of, Debt Securities in bearer form, or to permit or
facilitate the issuance of Debt Securities in uncertificated form, provided that
such action will not adversely affect the interests of the Holders of the Debt
Securities of any series in any material respect; (v) to change or eliminate any
provisions of an Indenture, provided that any such change or elimination will
become effective only when there are no Debt Securities Outstanding of any
series created prior thereto which are entitled to the benefit of such
provision; (vi) to secure the Debt Securities; (vii) to establish the form or
terms of Debt Securities of any series, including the provisions and procedures,
if applicable, for the conversion of such Debt Securities into Common Stock or
Preferred Stock of the Company; (viii) to provide for the acceptance of
appointment by a successor Trustee or facilitate the administration of the
trusts under an Indenture by more than one Trustee; (ix) to cure any ambiguity,
defect or inconsistency in an Indenture, provided that such action will not
adversely affect the interests of Holders of Debt Securities of any series
issued under such Indenture in any material respect; (x) to close either
Indenture with respect to the authentication and delivery of additional sums of
Debt Securities or to qualify, or maintain qualification of either Indenture
under the Trust Indenture Act; or (xi) to supplement any of the provisions of an
Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of such Debt Securities, provided that such action will
not adversely affect the interests of the Holders of the Debt Securities of any
series in any material respect (Section 901).
Each Indenture will provide that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
will be deemed to be Outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of any Debt Security denominated in a foreign currency that will be deemed
Outstanding will be the U.S. dollar equivalent, determined on the issue date for
such Debt Security, of the principal amount (or, in the case of Original Issue
Discount Security, the U.S. dollar equivalent on the issue date of such Debt
Security of the amount determined as provided in (i) above), (iii) the principal
amount of an indexed security that will be deemed Outstanding will be the
principal face amount of such indexed security at original issuance, unless
otherwise provided with respect to such indexed security pursuant to Section 301
of the applicable Indenture, and (iv) Debt Securities owned by the Company or
any other obligor upon the Debt Securities or any affiliate of the Company or of
such other obligor will be disregarded (Section 101).
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Each Indenture will contain provisions for convening meetings of the
Holders of Debt Securities of a series (Section 1501). A meeting may be called
at any time by the applicable Trustee, and also, upon request, by the Company or
the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of such series, in any such case upon notice given as provided in the
Indenture (Section 1502). Except for any consent that must be given by the
Holde rof each Debt Security affected by certain modifications and amendments of
an Indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that 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 Debt Securities of a series may be adopted at a
meeting or adjourned meeting or adjourned meeting duly reconvened at which a
quorum is present by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with an Indenture will be
binding on all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the
Outstanding Debt Securities of a series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Debt Securities of a series, the persons holding or
representing such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, each Indenture will provide that
if any action is to be taken at a meeting of Holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that such Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Debt Securities affected thereby, or the Holders of
such series and one or more additional series: (i) there will be no minimum
quorum requirement for such meeting, and (ii) the principal amount of the
Outstanding Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action will
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 such Indenture (Section 1504).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE. The Company may be
permitted under the applicable Indenture to discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not already
been delivered to the applicable Trustee for cancellation and that either have
become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
applicable Trustee, in trust, funds in such currency or currencies, currency
unit or units or composite currency or currencies in which such Debt Securities
are payable in an amount sufficient to pay the entire indebtedness on such Debt
Securities in respect of principal (and premium, if any) and interest and any
Additional Amounts to the date of such deposit (if such Debt Securities have
become due and payable) or to the stated maturity or redemption date, as the
case may be (Section 401).
Each Indenture will provide that, if the provisions of Article Fourteen are
made applicable to the Debt Securities of or within any series pursuant to
Section 301 of such Indenture, the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities, and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (b) to be released from its obligations with
respect to such Debt Securities under certain specified sections of Article Ten
of such Indenture as specified in the applicable Prospectus Supplement,
whereupon any omission to comply with such obligations will not constitute an
Event of Default with respect to such Debt Securities ("covenant defeasance")
(Section 1403), in either case upon the irrevocable deposit by the Company with
the applicable Trustee, in trust, of an amount, in such currency or currencies,
currency unit or units or composite currency or currencies in which such Debt
Securities are payable at stated maturity, or Government
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Obligations (as defined below), or both, applicable to such Debt Securities
which through the scheduled payment of principal and interest in accordance with
their terms will provide money in an amount sufficient without reinvestment to
pay the principal of (and premium, if any) and interest on such Debt Securities,
and any mandatory sinking fund or analogous payments thereon, on the scheduled
due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the applicable Trustee an opinion of
counsel (as specified in the applicable Indenture) to the effect that the
Holders of such Debt Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance or 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 defeasance
or covenant defeasance had not occurred, and such opinion of counsel, in the
case of defeasance, will be required to refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable U.S. federal income tax
law occurring after the date of the Indenture (Section 1404).
"Government Obligations" will be defined in the Indentures to mean
securities which are (i) direct obligations of the United States of America or
the government which issued the foreign currency in which the Debt 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 Debt Securities
of such series are payable, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of America
or such government, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the Holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the Holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt (Section 101).
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(a) the Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to Section 301 the applicable Indenture or the terms of such Debt
Security to receive payment in a currency, currency unit or composite currency
other than that in which such deposit has been made in respect of such Debt
Security, or (b) a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such deposit has been
made, the indebtedness represented by such Debt Security will 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 on such Debt Security as they
become due out of the proceeds yielded by converting the amount so deposited in
respect of such Debt Security into the currency, currency unit or composite
currency in which such Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable market exchange
rate. "Conversion Event" means the cessation of use of (i) a currency, currency
unit or composite 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. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that is payable in a foreign currency
that ceases to be used by its government of issuance will be made in U.S.
dollars.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because of
the occurrence of any Event of Default other than the Event of Default described
in clause (iv) under "Events of Default, Notice and Waiver" with respect to
certain specified sections of Article Ten of each Indenture (which sections
would no longer be applicable to such Debt Securities as a result of such
covenant defeasance) or described in clause (vii) under "Events of Default,
Notice and Waiver" with
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respect to any other covenant as to which there has been covenant defeasance,
the amount in such currency, currency unit or composite currency in which such
Debt Securities are payable, and Government Obligations on deposit with the
applicable Trustee, will be sufficient to pay amounts due on such Debt
Securities at the time of their stated maturity but may not be sufficient to pay
amounts due on such Debt Securities at the time of the acceleration resulting
from such Event of Default. However, the Company would remain liable to make
payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
CONVERSION RIGHTS. The terms and conditions, if any, upon which the Debt
Securities are convertible into Common Stock or Preferred Stock will be set
forth in the applicable Prospectus Supplement relating thereto. Such terms will
include whether such Debt Securities are convertible into Common Stock or
Preferred Stock, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the Holders or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of such
Debt Securities and any restrictions on conversion, including restrictions
directed at maintaining the Company's REIT status.
REDEMPTION OF SECURITIES. Each Indenture will provide that the Debt
Securities may be redeemed at any time at the option of the Company, in whole or
in part, at the Redemption Price, except as may otherwise be provided in
connection with any Debt Securities or series thereof (Section 1102).
From and after notice has been given as provided in the Indentures, if
funds for the redemption of any Debt Securities called for redemption have been
made available on such redemption date, such Debt Securities will cease to bear
interest on the date fixed for such redemption specified in such notice (Section
1105), and the only right of the Holders of the Debt Securities will be to
receive payment of the Redemption Price (Section 1106).
Notice of any optional redemption of any Debt Securities will be given to
Holders at their addresses, as shown in the Security Register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Debt Securities held by such Holder to be redeemed
(Section 1104). With respect to Bearer Securities, notice will be sufficiently
given if published in an Authorized Newspaper in the City of New York and in
such other city or cities as may be specified in the Debt Securities (Section
106).
If the Company elects to redeem Debt Securities, it will notify the
applicable Trustee at least 45 days prior to the redemption date (or such
shorter period as satisfactory to such Trustee) of the aggregate principal
amount of Debt Securities to be redeemed and the redemption date (Section 1102).
If less than all the Debt Securities are to be redeemed, the applicable Trustee
will select the Debt Securities to be redeemed PRO RATA, by lot or in such
manner as it deems fair and appropriate (Section 1103).
GLOBAL SECURITIES. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities (the "Global
Securities") that will be deposited with, or on behalf of, a depository
identified in the applicable Prospectus Supplement relating to such series
(Section 201). Global Securities, if any, issued in the United States are
expected to be deposited with the Depository Trust Company, as Depository.
Global Securities may be issued in fully registered form and may be issued in
either temporary or permanent form. Unless and until a Global Security is
exchanged in whole or in part for the individual Securities represented thereby,
it may not be transferred except as a whole by the Depository for such Global
Security to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by such Depository or
any nominee of such Depository to a successor Depository or any nominee of such
successor.
The specific terms of the depository arrangement with respect to particular
Securities will be described in the Prospectus Supplement relating to such
Securities. The Company expects that unless otherwise indicated in the
applicable Prospectus Supplement, the following provisions will apply to
depository arrangements.
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Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Securities represented
by such Global Security to the accounts of persons that have accounts with such
Depository ("Participants"). Such accounts will be designated by the
underwriters, dealers or agents with respect to such Securities or by the
Company if such Securities are offered directly by the Company. Ownership of
beneficial interests in such Global Security will be limited to Participants or
person that may hold interests through Participants. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depository
for such Global Security or its nominee (with respect to beneficial interests of
participants) and records of Participants (with respect to beneficial interests
of persons who hold through Participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and laws may impair the ability to own, pledge or
transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes. Except as described below
or in the applicable Prospectus Supplement, owners of beneficial interest in a
Global Security will not be entitled to have any of the individual Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of any such Securities in definitive
form and will not be considered the Owners or Holders thereof.
Payment with respect to Securities represented by a Global Security
registered in the name of a Depository or its nominee (including dividends, with
respect to Common Stock, dividends and any redemption payments on Preferred
Stock and principal of, any premium or Make-Whole Amount and any interest on, or
any Additional Amounts payable with respect to, individual Debt Securities) will
be made to the Depository or its nominee, as the case may be, as the registered
owner of the Global Security. None of the Company, any Trustee, any Paying
Agent, the Security Registrar or any transfer agent for Securities represented
by a Global Security will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in the Global Security for such Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depository for any Securities or its nominee,
upon receipt of any payment with respect to Securities represented by a Global
Security will immediately credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Global Security
as shown on the records of such Depository or its nominee. The Company also
expects that payments by Participants to owners of beneficial interests in such
Global Security held through such Participants will be governed by standing
instructions and customary practices, as is the case with securities held for
the account of customers in bearer form or registered in street name. Such
payments will be the responsibility of such Participants.
If a Depository for any Securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days, the Company will issue individual Securities in
exchange for the Global Security representing such discretion, subject to any
limitations described in the Prospectus Supplement relating to such Securities,
determine not to have any of such Securities represented by one or more Global
Securities and in such event will issue individual Securities in exchange for
the Global Security or Securities representing such Securities. Individual Debt
Securities so issued will be issued in denominations of $1,000 and integral
multiples thereof.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
GENERAL. Subordinated Debt Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain other subordinated
debt of the Company that may be outstanding from time to time and will rank
junior to all Senior Debt of the Company, including the Senior Debt Securities,
that may be outstanding from time to time. All Section references appearing
below are to Sections of the Subordinated Indenture.
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If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Debt outstanding as of a
recent date will be set forth in the Prospectus Supplement. The Subordinated
Indenture will not restrict the amount of Senior Debt that the Company may
incur.
The term "Senior Debt" will be defined in the Subordinated Indenture to
mean: (i) the principal of and premium, if any, and interest on indebtedness
for borrowed money; (ii) purchase money and similar obligations; (iii)
obligations under capital leases; (iv) guarantees, assumptions or purchase
commitments relating to, or other transactions as a result of which the Company
is responsible for payment of, such indebtedness of others; (v) renewals,
extensions and refunding of any such indebtedness; (vi) interest or obligations
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings; and (vii) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (i) through
(vii) expressly provides that such indebtedness or obligation is subordinate or
junior in right of payment to any other indebtedness or obligations of the
Company. As used in the preceding sentence, the term "purchase-money
obligations" means indebtedness or obligations evidenced by a note, debenture,
bond or other instrument (whether or not secured by any lien or other security
interest but excluding indebtedness or obligations for which recourse is limited
to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, but will not include any trade accounts payable
(Section 101).
SUBORDINATION. The payment of the principal of (and premium, if any) and
interest on the Subordinated Debt Securities is expressly subordinated, to the
extent and in the manner set forth in the Subordinated Indenture, in right of
payment to the prior payment in full of all Senior Debt of the Company (Section
1601).
No Payment or Distribution will be made by the Company, the Trustee or the
Paying Agent on account of principal of (or premium, if any) or interest on the
Subordinated Debt Securities, whether upon stated maturity, upon redemption or
acceleration, or otherwise, or on account of the purchase or other acquisition
of Subordinated Debt Securities, whether upon stated maturity, upon redemption
or acceleration, or otherwise, if there has occurred and be continuing a default
with respect to any Senior Debt permitting the acceleration thereof or with
respect to the payment of any Senior Debt and (a) such default is the subject of
a judicial proceeding or (b) notice of such default in writing or by telegram
has been given to the Company by any holder or holders of any Senior Debt,
unless and until the Company has received written notice from such holder or
holders that such default or event of default has been cured or waived or has
ceased to exist (Section 1602).
Upon any acceleration of the principal of the Subordinated Debt Securities
or any payment by the Company or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior Debt will
first be paid in full in cash, or payment thereof provided for to the
satisfaction of the holders thereof, before any Payment or Distribution is made
on account of the redemption price or principal of (and premium, if any) or
interest on the Subordinated Debt Securities; and (subject to the power of a
court of competent jurisdiction to make other equitable provision, which has
been determined by such court to give effect to the rights conferred in Article
16 of the Subordinated Indenture upon the Senior Debt and the holders thereof
with respect to the Subordinated Debt Securities or the Holders thereof or the
Trustee, by a lawful plan of reorganization or readjustment under applicable
law) upon any such dissolution or winding up or liquidation or reorganization,
any Payment or Distribution by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Subordinated Debt Securities or the Trustee would be
entitled except for the provisions of Article 16 of the Subordinated Indenture,
will be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such Payment or Distribution
directly to the holders of Senior Debt of the Company or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior Debt
in full in cash, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Debt, before any Payment or Distribution is made
to the Holders of the Subordinated Debt Securities or to the Trustee, except
that the Trustee will have a lien for the payment of its fees and expenses
(Section 1602).
In the event that, notwithstanding the foregoing, any Payment or
Distribution by the Company of any kind or character, whether in cash, property
or securities, prohibited by the foregoing, will be received by the Trustee or
the Holders of the Subordinated Debt Securities before all Senior Debt is paid
in full in cash, or provision is made for such payment to the satisfaction of
the holders thereof, and if such fact has then been or thereafter is made known
to a Responsible Officer of the Trustee or, as the case may be, such Holder,
then and in such event such Payment or Distribution will be paid over or
delivered to the holders of Senior Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all Senior
Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in
cash, after giving
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effect to any concurrent Payment or Distribution to or for the holders of such
Senior Debt, and, until so delivered, the same will be held in trust by any
Holder of a Security as the property of the holders of Senior Debt (Section
1602).
The holders of Senior Debt may, at any time and from time to time, without
the consent of or notice to the Holders of the Subordinated Debt Securities,
without incurring responsibility to the Holders of the Subordinated Debt
Securities and without impairing or releasing the obligations of the Holders of
the Subordinated Debt Securities hereunder to the holders of Senior Debt: (i)
change the manner, place or terms of payment or change or extend the time of
payment of, or renew or alter, Senior Debt, or otherwise amend in any manner
Senior Debt or any instrument evidencing the same or any agreement under which
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Debt; (iii) release
any Person liable in any manner for the collection of Senior Debt; and/or (iv)
exercise or refrain from exercising any rights against the Company and any other
Person (Section 1602).
SUBROGATION. Subject to the payment in full in cash of all amounts then
due (whether by acceleration of the maturity thereof or otherwise) on account of
all Senior Debt at the time outstanding, the Holders of the Subordinated Debt
Securities will be subrogated to the rights of the holders of Senior Debt to
receive Payments or Distributions of cash, property or securities of the Company
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Subordinated Debt Securities is paid in full; and, for the
purposes of such subrogation, no Payments or Distributions to the holders of
Senior Debt to which the Holders of the Subordinated Debt Securities or the
Trustee would be entitled except for the provisions of Article 16 of the
Subordinated Indenture, and no payments over pursuant to the provisions of
Article 16 of the Subordinated Indenture to the holders of Senior Debt by
Holders of the Subordinated Debt Securities or the Trustee, will, as between the
Company, the Company's creditors other than holders of Senior Debt, and the
Holders of the Subordinated Debt Securities, be deemed to be a payment by the
Company to or on account of the Senior Debt. It is understood that the
provisions of Article 16 of the Subordinated Indenture are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Subordinated Debt Securities, on the one hand, and the holders of Senior Debt,
on the other hand (Section 1603).
DESCRIPTION OF CAPITAL STOCK
The following is a summary of the terms of the capital stock of the
Company. This summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the Articles of Incorporation and
Bylaws of the Company. See "Available Information."
GENERAL
The Articles of Incorporation authorize the issuance of up to 60,000,000
shares, of which 47,727,273 are shares of Common Stock, par value $.001 per
share ("Common Stock"), 2,272,727 are shares of Class B Common Stock, par value
$.001 per share ("Class B Common Stock"), and 10,000,000 are shares of Series
Preferred Stock, par value $.001 per share ("Preferred Stock"). As of October
31, 1996, there were 14,312,195 shares of Common Stock issued and outstanding
and 2,272,727 shares of Class B Common Stock issued and outstanding, all of
which
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are fully-paid and non-assessable. The Class B Common Stock was issued in May
1996 upon conversion of the Company's Series A Preferred Stock. As a
consequence of such conversion, no shares of Preferred Stock are currently
issued and outstanding, and the Series A Preferred Stock reverted to the status
of authorized and unissued Preferred Stock.
COMMON STOCK
Holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors out of funds legally available therefor after
payment of any preferential dividends to the holders of any series of Preferred
Stock that may then be issued and outstanding. Upon any liquidation,
dissolution or winding up of the Company, holders of Common Stock are entitled
to receive ratably any assets remaining after payment in full of all liabilities
of the Company and any preferential payments to the holders of the Preferred
Stock. The holders of Common Stock are entitled to one vote per share on all
matters voted on by stockholders, including elections of directors, and, except
as otherwise required by law with respect to class voting rights, or as granted
to the holders of Class B Common Stock, or provided in any resolution adopted by
the Board of Directors with respect to any series of Preferred Stock
establishing the powers, designations, preferences and relative, participating,
optional or other special rights of such series, the holders of Common Stock
possess all voting powers. Holders of Common Stock do not possess preemptive
rights to subscribe for additional securities of the Company or the right to
cumulate their shares in the election of directors or in any other matter. All
shares of Common Stock offered by the Company will be, and all issued and
outstanding shares of Common Stock are, fully paid and non-assessable.
The transfer agent and registrar for the Common Stock is First Chicago
Trust Company of New York, Jersey City, New Jersey.
CLASS B COMMON STOCK
DIVIDENDS. Holders of Class B Common Stock are entitled to receive, when
and as declared by the Board of Directors, out of funds legally available
therefor, dividends PARI PASSU with any dividends paid on the Common Stock, in
an amount per share equal to the Class B Common Stock Common Dividend Amount as
in effect from time to time. Each calendar quarter is referred to as a
"Dividend Period." The amount of dividends payable with respect to each full
Dividend Period is computed by dividing the Class B Common Stock Common Dividend
Amount by four. The amount of dividends on the Class B Common Stock with
respect to any Dividend Period shorter or longer than a full Dividend Period is
computed ratably on the basis of the actual number of days in such Dividend
Period. The initial Class B Common Stock Dividend Amount was $1.6068. Upon a
change in the quarterly cash dividend per share applicable to the Common Stock,
the quarterly cash dividend per share of the Class B Common Stock is adjusted
for the same Dividend Period by an amount computed by multiplying the amount of
the change in the Common Stock dividend by the Conversion Ratio (as defined
below).
In the event the Company declares a distribution payable in (i) securities
of other persons, (ii) evidences of indebtedness issued by the Company or other
persons, (iii) assets (excluding cash dividends), or (iv) options or rights to
purchase capital stock or evidences of indebtedness in the Company or other
persons, then the holders of Class B Common Stock will be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock into which their shares of Class B Common
Stock are or would be convertible (assuming such shares of Class B Common Stock
were then convertible) as of the record date fixed for determination of the
holders of Common Stock entitled to receive such distribution.
LIQUIDATION RIGHTS. Subject to any prior rights of any other class or
series of stock, the holders of the Class B Common Stock will be entitled to
receive the remaining assets of the Company available for distribution pro rata
with the holders of shares of capital stock of the Company as though they were
the holders of the number of shares of Common Stock of the Company into which
their shares of Class B Common Stock are or would be convertible (assuming such
shares of Class B Common Stock were then convertible) as of the record date
applicable to such distribution.
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Neither a consolidation or merger of the Company with or into any other
corporation, nor a merger of any other corporation into the Company, nor the
purchase or redemption of all or part of the outstanding shares of any class or
classes of stock of the Company, nor a sale or transfer of all or any part of
its assets, will be considered a liquidation, dissolution or winding up of the
Company.
VOTING RIGHTS. The holders of Class B Common Stock are not entitled to
vote on any matter on which the holders of Common Stock are entitled to vote,
except that the holders of a majority of the Class B Common Stock, voting as a
separate class, must approve (i) any material adverse change in the rights,
preferences or privileges of the Class B Common Stock and (ii) any creation of a
new class of stock having rights, preferences or privileges senior to or on a
parity with the preferences or privileges of the Class B Common Stock.
CONVERSION RIGHTS. Beginning on September 30, 1998, and at the end of each
calendar quarter thereafter, such number of shares of Class B Common Stock will
mandatorily convert into such number of shares of Common Stock as will result in
the holders of the Class B Common Stock owning, in the aggregate, 4.9% of the
then outstanding shares of Common Stock; and if on any such date the total
number of outstanding shares of Class B Common Stock would not, upon conversion,
result in the holders thereof owning, in the aggregate, 4.9% of the then
outstanding shares of Common Stock, then all such outstanding shares of Class B
Common Stock will mandatorily convert into Common Stock.
On May 22, 2006 (the tenth anniversary of issuance of the Class B Common
Stock), each remaining share of Class B Common Stock which has not been
converted to Common Stock will mandatorily convert to that number of non-
assessable shares of Common Stock equal to the Conversion Ratio, as adjusted,
regardless of the 4.9% limitation.
Beginning on September 21, 1998, the holders of shares of Class B Common
Stock will have the right, at their option, to convert each such share of Class
B Common Stock, at any time and from time to time, into one fully paid and non-
assessable share of Common Stock (the "Conversion Ratio," which is subject to
adjustment as provided below); PROVIDED, HOWEVER, that no holder of Class B
Common Stock will be entitled to convert shares of such Class B Common Stock
into Common Stock pursuant to the foregoing provision, if, as a result of such
conversion, such person would become the Beneficial Owner of more than 4.9% of
the Corporation's outstanding Common Stock. "Beneficial Owner" has the meaning
set forth in Rule 13d-3 under the Securities and Exchange Act of 1934 (or any
successor provision thereto). Notwithstanding the foregoing, the foregoing
conversion right may be exercised at any time and irrespective of the 4.9%
limitation (and no such limit will apply) if any of the following circumstances
occurs:
(i) For any two consecutive fiscal quarters, the aggregate
amount outstanding as of the end of the quarter under (A) all mortgage
indebtedness of the Company and its consolidated entities and (B) unsecured
indebtedness of the Company and its consolidated entities for money
borrowed that has not been made generally subordinate to the other
indebtedness for borrowed money of the Company or any consolidated entity
exceeds fifty-five percent (55%) of the Company's total market
capitalization, defined as the market value of all of the Company's
outstanding capital stock, assuming the conversion of all outstanding
convertible securities, including the Class B Common Stock, plus the amount
of the Company's total non-convertible indebtedness; or
(ii) Fewer than three of John S. Gates, Jr., Robert M. Stovall,
Michael M. Mullen and Paul S. Fisher are continuing as Key Managers of the
Company. (For purposes of this subparagraph (ii), a "Key Manager" means a
Person who is (A) employed by the Company and (B) actively participates as
a senior executive officer in the management of the Company); or
(iii) If (A) the Company is party to, or has announced or entered
into an agreement for, any transaction (including, without limitation, a
merger, consolidation, statutory share exchange or sale of all or
substantially all of its assets (each of the foregoing a "Transaction"), in
each case as a result of which shares of Common Stock has been or will be
converted into the right to receive stock, securities or other property
(including cash or any combination thereof) or which has resulted or will
result in the holders of
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Common Stock immediately prior to the Transaction owning less than 50% of
the Common Stock after the Transaction, or (B) a "Change of Control" as
defined in the next sentence occurs with respect to the Company. "Change
of Control" means the acquisition (including by virtue of a merger, share
exchange or other business combination) by one stockholder or a group of
stockholders acting in concert of the power to elect a majority of the
Company's board of directors.
No fractional shares will be issued upon conversion of the Class B Common
Stock into Common Stock, and the number of shares of Common Stock to be issued
will be rounded to the nearest whole share.
The Conversion Ratio is subject to adjustment as follows:
(i) In the event the Company at any time (A) pays a dividend or
make a distribution to holders of Common Stock in shares of capital stock
of the Company, (B) subdivides its outstanding shares of Common Stock into
a larger number of shares, (C) combines its outstanding shares of Common
Stock into a smaller number of shares, or (D) issues by reclassification of
its shares of Common Stock any shares of the Company, the Conversion Ratio
in effect immediately prior thereto will be adjusted as provided below so
that the holder of any share of Class B Common Stock thereafter surrendered
for conversion will be entitled to receive the number of shares of the
Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such share of
Class B Common Stock been converted immediately prior to the happening of
such event. Any adjustment made pursuant to this subparagraph (i) will
become effective retroactively immediately after the record date in the
case of a dividend and will become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification.
(ii) In case the Company issues rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price (as
hereinafter defined) per share of Common Stock at the record date mentioned
below, the number of shares of Common Stock into which each share of Class
B Common Stock will thereafter be convertible will be determined by
multiplying the number of shares of Common Stock into which such share of
Class B Common Stock was theretofore convertible by a fraction, of which
the numerator will be the number of shares of Common Stock outstanding on
the date of issuance of such rights or warrants plus the number of
additional shares of Common Stock offered for subscription or purchase, and
of which the denominator will be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of shares which the aggregate offering price of the total number of
shares so offered would purchase at such current market price. Such
adjustment will be made whenever such rights or warrants are issued, and
will become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such rights or
warrants.
(ii) In case the Company distributes to all holders of its Common
Stock evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase securities issued by the Company or property of
the company (excluding those referred to in subparagraph (ii) above), then
in each such case the number of shares of Common Stock into which each
share of Class B Common Stock will thereafter be convertible will be
determined by multiplying the number of shares of Common Stock into which
such share of Class B Common Stock was theretofore convertible by a
fraction, of which the numerator will be the current market price per share
of the Common Stock, and of which the denominator will be such current
market price per share of Common Stock, less the then fair market value (as
determined by the Board of Directors of the Company, whose determination
will be conclusive) of the portion of the assets or evidence of
indebtedness so distributed or of such rights or warrants applicable to one
share of the Common Stock. Such adjustment will be made whenever any such
distribution is made, and will become effective retroactively immediately
after the record date for the determination of stockholders entitled to
receive such distribution.
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(iv) If any such rights or warrants referred to above expires
without having been exercised, the Conversion Ratio as theretofore adjusted
because of the issue of such rights or warrants will forthwith be
readjusted to the Conversion Ratio which would have been in effect had an
adjustment been made on the basis that only the rights or warrants to
issued or sold were those rights or warrants actually exercised and that
with respect to any such rights or warrants to subscribe for or purchase
securities issued by the Company, other than Common Stock or property of
the Company, the fair market value thereof will be the fair market value of
the rights or warrants actually exercised or warrants actually exercised.
For the purpose of any computation under these paragraphs (i)-(iv), the
current market price per share of Common Stock at any date will be deemed to be
the average of the daily closing prices for the 15 consecutive business days
commencing 30 business days before the day in question. The closing price for
each day will be the last reported sale price regular way or, in the case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New York Stock Exchange,
or, if the Common Stock is not listed or admitted to trading on such Exchange,
on any national securities exchange, designated by the Board of Directors, on
which the Common Stock is listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any New York Stock Exchange firm
selected from time to time by the Company for the purpose.
No adjustment of the Conversion Ratio will be made as a result of or in
connection with the issuance of Common Stock of the Company pursuant to options
or stock purchase agreements now or hereafter granted or entered into with
directors, officers or employees of the Company or its subsidiaries in
connection with their employment, whether entered into at the beginning of the
employment or at any time thereafter.
In case of:
(i) any capital reorganization of the Company, or
(ii) the consolidation or merger of the Company with or into
another corporation, or
(iii) a statutory share exchange whereby the Company's Common
Stock is converted into property other than cash, or
(iv) the sale, transfer or other disposition of all or
substantially all of the property, assets or business of the Company as a
result of which sale, transfer or other disposition property other than
cash will be payable or distributable to the holders of the Common Stock,
then, in each such case, each share of Class B Common Stock will thereafter be
convertible into the number and class of shares or other securities or property
of the Company, or of the corporation resulting from such consolidation or
merger or with or to which such statutory share exchange, sale, transfer or
other disposition has been made, to which the Common Stock otherwise issuable
upon conversion of such share of Class B Common Stock would have been entitled
upon such reorganization, consolidation, merger, statutory share exchange, or
sale, transfer or other disposition if outstanding at the time thereof; and in
any such case appropriate adjustment, as determined by the Board of Directors,
will be made in the application of the provisions set forth in the foregoing
paragraph with respect to the conversion rights thereafter of the holders of the
Class B Common Stock, to the end that such provisions will thereafter be
applicable, as nearly as reasonably may be, in relation to any shares or
securities or other property thereafter issuable or deliverable upon the
conversion of Class B Common Stock. Proper provision will be made as a part of
the terms of any such reorganization, consolidation, merger, statutory share
exchange or sale, transfer or other disposition whereby the conversion rights of
the holders of Class B Common Stock will be protected and preserved in
accordance with the provisions of this paragraph. The provisions of this
paragraph will similarly apply to successive capital reorganizations,
consolidations, mergers, statutory share exchanges, sales, transfers or other
dispositions of property as aforesaid.
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Upon conversion of any shares of Class B Common Stock, no payment or
adjustment will be made on account of dividends accrued, whether or not in
arrears, on such shares or on account of dividends declared and payable to
holders of Common Stock of record on a date prior to the date of conversion.
If the Company is party to any Transaction in each case as a result of
which shares of Common Stock will be converted into the right to receive stock,
securities or other property (including cash or any combination thereof), the
holder of each share of Class B Common Stock will have the right after such
Transaction to convert such share, pursuant to the optional conversion
provisions hereof, into the number and kind of shares of stock or other
securities and the amount and kind of property receivable upon such Transaction
by a holder of the number of shares of Common Stock issuable upon conversion of
such share of Class B Common Stock immediately prior to such Transaction. The
Company will not be party to any Transaction unless the terms of such
Transaction are consistent with the provisions of this paragraph, and it will
not consent to or agree to the occurrence of any Transaction until the Company
has entered into an agreement with the successor or purchasing entity, as the
case may be, for the benefit of the holders of the Class B Common Stock, thereby
enabling the holders of the Class B Common Stock to receive the benefits of this
paragraph and the other provisions of the Company's Articles of Incorporation
applicable to the Class B Common Stock.
PREFERRED STOCK
GENERAL. Shares of Preferred Stock may be issued from time to time, in one
or more series, as authorized by the Board of Directors. Prior to issuance of
shares of each series, the Board is required to fix for each such series,
subject to the provisions of Maryland law and the Articles of Incorporation, the
powers, designations, preferences and relative, participating, optional or other
special rights of such series and qualifications, limitations or restrictions
thereof, including such provisions as may be desired concerning voting,
redemption, dividends, dissolution or the distribution of assets, conversion or
exchange, and such other matters as may be fixed by resolution of the Board of
Directors or a duly authorized committee thereof. The Board could authorize the
issuance of shares of Preferred Stock with terms and conditions which could have
the effect of discouraging a takeover or other transaction which holders of
some, or a majority of, shares of Common Stock might believe to be in their best
interests, or in which holders of some, or a majority of, shares of Common Stock
might receive a premium for their shares of Common Stock over the then market
price of such shares. The Preferred Stock will, when issued, be fully-paid and
non-assessable and will have no preemptive rights.
The Prospectus Supplement relating to any Preferred Stock offered thereby
will contain the specific terms, including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the liquidation
preference per share and the offering price of such Preferred Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock will accumulate,
if applicable.
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred Stock;
(7) The provisions for redemption, if applicable, of such Preferred Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
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(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company, including
the conversion price (or manner of calculation thereof);
(10) A discussion of federal income tax considerations applicable to such
Preferred Stock;
(11) The relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(12) Any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(13) Any limitations on direct or beneficial ownership and restrictions on
transfer of such Preferred Stock, in each case as may be appropriate
to preserve the status of the Company as a REIT; and
(14) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
The Registrar and Transfer Agent for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
RANK. Unless otherwise specified in the Prospectus Supplement, the
Preferred Stock will, with respect to dividend rights and/or rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to all
classes or series of Common Stock of the Company, and to all Equity Stock
(defined below) ranking junior to such Preferred Stock; (ii) on a parity with
all Equity Stock issued by the Company the terms of which specifically provide
that such Equity Stock rank on a parity with the Preferred Stock; and (iii)
junior to all Equity Stock issued by the Company the terms of which specifically
provide that such Equity Stock rank senior to the Preferred Stock. The term
"Equity Stock" includes Common Stock and Preferred Stock and does not include
convertible debt securities.
DIVIDENDS. Holders of the Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors of the Company,
out of assets of the Company legally available for payment, cash dividends at
such rates (or method of calculation thereof) and on such dates as will be set
forth in the applicable Prospectus Supplement. Each such dividend will be
payable to holders of record as they appear on the stock transfer books of the
Company on such record dates as are fixed by the Board of Directors of the
Company.
Dividends on any series of Preferred Stock may be cumulative or non-
cumulative, as provided in the applicable Prospectus Supplement. Dividends, if
cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors of the Company
fails to declare a dividend payable on a dividend payment date on any series of
the Preferred Stock for which dividends are non-cumulative, then the holders of
such series of the Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
If any Preferred Stock of any series is outstanding, no full dividends will
be declared or paid or set apart for payment on any Preferred Stock of the
Company of any other series ranking, as to dividends, on a parity with or junior
to the Preferred Stock of such series for any period unless (i) if such series
of Preferred Stock has a cumulative dividend, full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Preferred Stock of
such series for all past dividend periods and the then current dividend period
or (ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends for the then current dividend period have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Preferred Stock of such
series. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Preferred Stock of any series and the
shares of any other series of Preferred Stock ranking on
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a parity as to dividends with the Preferred Stock of such series, all
dividends declared upon the Preferred Stock of such series and any other
series of Preferred Stock ranking on a parity as to dividends with such
Preferred Stock will be declared pro rata so that the amount of dividends
declared per share on Preferred Stock of such series and such other series of
Preferred Stock will in all cases bear to each other the same ratio that
accrued dividends per share on the Preferred Stock of such series (which will
not include any accumulation in respect of unpaid dividends for prior
dividend periods if such Preferred Stock does not have a cumulative dividend)
and such other series of Preferred Sock bear to each other. No interest, or
sum of money in lieu of interest, will be payable in respect of any dividend
payment or payments on Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for all past dividend periods and
the then current dividend period, and (ii) if such series of Preferred Stock
does not have a cumulative dividend, full dividends on the Preferred Stock of
such series have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for the
then current dividend period, no dividends (other than in Common Stock or
other capital stock ranking junior to the Preferred Stock of such series as
to dividends and upon liquidation) will be declared or paid or set aside for
payment or other distribution upon the Common Stock, or any other capital
stock of the Company ranking junior to or on a parity with the Preferred
Stock of such series as to dividends or upon liquidation, nor will any Common
Stock, or any other capital stock of the Company ranking junior to or on a
parity with the Preferred Stock of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by the Company (except by conversion
into or exchange for other capital stock of the Company ranking junior to the
Preferred Stock of such series as to dividends and upon liquidation).
Any dividend payment made on a series of Preferred Stock will first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of such series which remains payable.
REDEMPTION. If so provided in the applicable Prospectus Supplement, the
Preferred Stock will be subject to mandatory redemption or redemption at the
option of the Company, in whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in such Prospectus
Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that
is subject to mandatory redemption will specify the number of shares of
Preferred Stock, if any, that will be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to
be specified, together with an amount equal to all accrued and unpaid
dividends thereon (which will not, if such Preferred Stock does not have a
cumulative dividend, include any accumulation in respect of unpaid dividends
for prior dividend periods) to the date of redemption. The redemption price
may be payable in cash or other property as specified in the applicable
Prospectus Supplement. If the redemption price for Preferred Stock of any
series is payable only from the net proceeds of the issuance of capital stock
of the Company, the terms of such Preferred Stock may provide that if no such
capital stock has been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, such Preferred Stock will automatically and mandatorily be converted
into the applicable capital stock of the Company pursuant to conversion
provisions specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred
Stock has a cumulative dividend, full cumulative dividends on all Preferred
Stock of any series have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment
for all past dividend periods and the current dividend period and (ii) if
such series of Preferred Stock does not have a cumulative dividend, full
dividends on all shares of such series have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for the then current dividend period, no shares of such
series of Preferred Stock will be redeemed unless all outstanding shares of
Preferred Stock of such series are simultaneously redeemed; provided,
however, that the foregoing will not prevent the purchase or acquisition of
Preferred Stock of such series to preserve the REIT status of the Company or
pursuant to a purchase or exchange offer made on the
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same terms to holders of all outstanding Preferred Stock of such series. In
addition, unless (i) if such series of Preferred Stock has a cumulative
dividend, full cumulative dividends on all outstanding shares of any series of
Preferred Stock have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, and (ii) if such series
of Preferred Stock does not have a cumulative dividend, full dividends on all
shares of such series of Preferred Stock have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for the then current dividend period, the Company will not
purchase or otherwise acquire directly or indirectly any Preferred Stock of such
series (except by conversion into or exchange for capital stock of the Company
ranking junior to the Preferred Stock of such series as to dividends and upon
liquidation); provided, however, that the foregoing will not prevent the
purchase or acquisition of Preferred Stock of such series to preserve the REIT
status of the Company or pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Preferred Stock of such series.
If fewer than all of the outstanding Preferred Stock of any series are to
be redeemed, the number of shares to be redeemed will be determined by the
Company and such shares may be redeemed pro rata from the holders of record of
such shares in proportion to the number of such shares held or for which
redemption is requested by such holders (with adjustments to avoid redemption of
fractional shares) or in any other manner determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the stock transfer books of
the Company. Each notice will state: (i) the redemption date; (ii) the number
of shares and series of Preferred Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Preferred Stock are
to be surrendered for payment of the redemption prices; (v) that dividends on
the shares to be redeemed will cease to accrue on such redemption date; and (vi)
the date upon which the holder's conversion rights, if any, as to such shares
will terminate. If fewer than all of the shares of Preferred Stock of any
series are to be redeemed, the notice mailed to each such holder thereof will
also specify the number of shares of Preferred Stock to be redeemed from each
such holder. If notice of redemption of any shares of Preferred Stock has been
given and if the funds necessary for such redemption have been irrevocably set
aside by the Company in trust for the benefit of the holders of any shares of
Preferred Stock so called for redemption, then from and after the redemption
date dividends will cease to accrue on such shares of Preferred Stock, such
shares of Preferred Stock will no longer be deemed outstanding and all rights of
the holders of such shares will terminate, except the right to receive the
redemption price.
LIQUIDATION PREFERENCE. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, then, before any
distribution or payment will be made to the holders of any Common Stock or any
other class or series of capital stock of the Company ranking junior to the
Preferred Stock in the distribution of assets upon any liquidation, dissolution
or winding up of the Company, the holders of each series of Preferred Stock will
be entitled to receive out of assets of the Company legally available for
distribution to shareholders liquidating distributions in the amount of the
liquidation preference per share (set forth in the applicable Prospectus
Supplement), plus an amount equal to all dividends accrued and unpaid thereon
(which will not include any accumulation in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a cumulative
dividend). After payment of the full amount for the liquidating distributions
to which they are entitled, the holders of Preferred Stock will have no right or
claim to any of the remaining assets of the Company. In the event that, upon
any such voluntary or involuntary liquidation, dissolution or winding up, the
legally available assets of the Company are insufficient to pay the amount of
the liquidating distributions on all outstanding Preferred Stock and the
corresponding amounts payable on all shares of other classes or series of
capital stock of the Company ranking on a parity with the Preferred Stock in the
distribution of assets, then the holders of the Preferred Stock and all other
such classes or series of capital stock will share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
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If liquidating distributions have been made in full to all holders of a
series of Preferred Stock, the remaining assets of the Company will be
distributed among the holders of any other classes or series of capital stock
ranking junior to the Preferred Stock upon liquidation, dissolution or winding
up, according to their respective rights and preferences and in each case
according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, trust
or entity, or the sale, lease or conveyance of all or substantially all of the
property or business of the Company, will not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
VOTING RIGHTS. Holders of Preferred Stock will not have any voting rights,
except as set forth below or as otherwise from time to time required by law or
as indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Stock, so long as any
Preferred Stock remain outstanding, the Company will not, without the
affirmative vote or consent of the holders of at least two-thirds of each series
of Preferred Stock outstanding at the time, given in person or by proxy, either
in writing or at a meeting (such series voting separately as a class), (i)
authorize, create or increase the authorized or issued amount of, any class or
series of capital stock ranking prior to such series of Preferred Stock with
respect to the payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Company into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares; or (ii) amend, alter or repeal the provisions of the Company's
Articles of Incorporation, whether by merger, consolidation or otherwise (an
"Event"), so as to materially adversely affect any right, preference, privilege
or voting power of such series of Preferred Stock or the holders thereof;
provided, however, with respect to the occurrence of any of the Events set forth
in (ii) above, so long as the Preferred Stock remains outstanding with the terms
thereof materially unchanged, taking into account that upon the occurrence of an
Event, the Company may not be the surviving entity, the occurrence of any such
Event will not be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of Preferred Stock and
provided further that (x) any increase in the amount of the authorized Preferred
Stock or the creation or issuance of any other series of Preferred Stock, or (y)
any increase in the amount of authorized shares of such series or any other
series of Preferred Stock, in each case ranking on a parity with or junior to
the Preferred Stock of such series with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, will not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required is
effected, all outstanding Preferred Stock of such series have been redeemed or
called for redemption and sufficient funds have been deposited in trust to
effect such redemption.
CONVERSION RIGHTS. The terms and conditions, if any, upon which any series
of Preferred Stock is convertible into Common Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of shares of Common Stock into which the Preferred Stock is convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
NO STOCKHOLDER LIABILITY
Applicable Maryland law provides that no holder of Common or Preferred
Stock will be personally liable for the acts and obligations of the Company and
that the funds and property of the Company will be the only recourse for such
acts or obligations.
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RESTRICTIONS ON TRANSFER
For the Company to qualify as a REIT under the Code, shares of Common Stock
must be beneficially owned by 100 or more persons during at least 335 days of a
taxable year of 12 months (other than the first year for which REIT status is
elected) or during a proportionate part of a shorter taxable year. Also, not
more than 50% of the value of the issued and outstanding shares of capital stock
may be owned, directly or indirectly, by five or fewer individuals (as defined
in the Code to include certain entitles) during the last half of a taxable year
(other than the first year for which REIT status is elected) or during a
proportionate part of a shorter taxable year. To ensure compliance with these
requirements, the Articles of Incorporation contain provisions restricting the
ownership and acquisition of shares of the Company's capital stock, including
any Preferred Stock of the Company.
The Articles of Incorporation, subject to an exception in favor of Capital
and Regional Properties, plc ("CRP-London"), provide that no holder may own, or
be deemed to own by virtue of the attribution provisions of the Code, more than
9.8% in value (the "Ownership Limit") of the issued and outstanding shares of
the Company's Common Stock or Preferred Stock (collectively, "Equity Stock").
The constructive ownership rules are complex and may cause Equity Stock owned
directly or constructively by a group of related individuals and/or entities to
be deemed to be constructively owned by one individual or entity. As a result,
the acquisition of less than 9.8% of the Equity Stock (or the acquisition of an
interest in an entity which owns Equity Stock) by an individual or entity could
cause that individual or entity (or another individual or entity) to own
constructively in excess of 9.8% of the Equity Stock, and thus subject such
Equity Stock to the Ownership Limit. In addition, for these purposes, shares of
Common Stock that may be acquired upon conversion or exchange of convertible
Debt Securities directly or constructively held by an investor, but not
necessarily shares of Common Stock issuable with respect to convertible Debt
Securities held by others, will be deemed to be outstanding prior to conversion
or exchange, for purposes of determining the percentage of ownership of Equity
Stock held by that investor. The Board of Directors may, upon the receipt of a
ruling from the IRS or an opinion of counsel satisfactory to it, waive the
Ownership Limit with respect to a given holder if such holder's ownership will
not then or in the future jeopardize the Company's status as a REIT.
Recent tax legislation relaxed the rules concerning ownership of stock in a
REIT by certain domestic pension trusts. The Articles of Incorporation do not
implement this change in the tax law. Under the Articles of Incorporation,
domestic pension funds are subject to the restriction on ownership of more than
9.8% of the value of the outstanding stock.
The Articles of Incorporation contain a provision which limits the right of
any stockholder to transfer or otherwise dispose of his shares of Equity Stock
in a manner which is contrary to the Ownership Limit. If any stockholder
purports to transfer his shares to another person and either the transfer would
result in the Company failing to qualify as a REIT or such transfer would cause
the transferee to hold more than the Ownership Limit, the purported transfer
will be null and void and the stockholder will be deemed not to have transferred
his shares. Moreover, if any person holds shares in excess of the Ownership
Limit, such person will be deemed to hold those shares that cause such limit to
be exceeded solely in trust for the benefit of the Company, and will not receive
distributions with respect to such shares or be entitled to vote such shares.
In such event, such person will be deemed to have offered to sell such excess
shares to the Company for the lesser of the amount paid for such shares or the
market price of such shares, which offer the Company can accept for a period of
90 days after the later of (i) the date of the transfer resulting in such excess
shares and (ii) the date the Company's Board of Directors determines that such
excess shares exist. In its sole discretion, the Company may repurchase such
shares for cash.
Federal income tax regulations require that the Company demand within 30
days after the end of each of its taxable years written statements from
stockholders of record holding more than a specified percentage of the Company's
stock, in which the stockholders set out information with respect to their
actual and constructive ownership of the Equity Stock and the Debentures. In
addition, each stockholder must on demand disclose to the Company in writing
such additional information as the Company may request in order to determine the
effect of such stockholder's direct, indirect and constructive ownership of such
shares on the Company's status as a REIT.
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All certificates representing shares of Common Stock and/or Preferred Stock
will bear a legend referring to the restrictions on transfer described above.
These ownership limitations could have the effect of discouraging a
takeover or other transactions in which holders of some, or a majority, of
shares of Equity Stock might receive a premium for their shares over the
prevailing market price or which such holders might believe to be otherwise in
their best interest.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock or Common Stock. Securities Warrants may be issued
independently or together with any other Securities offered by any Prospectus
Supplement and may be attached to or separate from such Securities. Each series
of Securities Warrants will be issued under a separate warrant agreement (each a
"Warrant Agreement") to be entered into between the Company and a warrant agent
specified in the applicable Prospectus Supplement (the "Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection with the
Securities Warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
Securities Warrants. The following summaries of certain provisions of the
Securities Warrant Agreement and the Securities Warrants do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Securities Warrant Agreement and the Securities
Warrant certificates relating to each series of Securities Warrants which will
be filed with the Commission and incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of Securities Warrants.
If Securities Warrants are offered, the applicable Prospectus Supplement
will describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the denominations and terms of the
series of Debt Securities purchasable upon exercise of such Securities Warrants;
(iii) the designation and terms of any series of Debt Securities with which such
Securities Warrants are being offered and the number of such Securities Warrants
being offered with such Debt Securities; (iv) the date, if any, on and after
which such Securities Warrants and the related series of Debt Securities will be
transferable separately; (v) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Securities Warrant and the
price at which such principal amount of Debt Securities of such series may be
purchased upon such exercise; (vi) the date on which the right to exercise such
Securities Warrants shall commence and the date on which such right shall expire
(the "Expiration Date"); (vii) whether the Securities Warrants will be issued in
registered or bearer form; (viii) any special United States federal income tax
consequences; (ix) the terms, if any, on which the Company may accelerate the
date by which the Securities Warrants must be exercised; and (x) any other
material terms of such Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Stock or
Common Stock, the applicable Prospectus Supplement will describe the terms of
such Securities Warrants, including the following where applicable: (i) the
offering price; (ii) the aggregate number of shares purchasable upon exercise of
such Securities Warrants, the exercise price, and in the case of Securities
Warrants for Preferred Stock, the designation, aggregate number and terms of the
series of Preferred Stock with which such Securities Warrants are being offered
and the number of such Securities Warrants being offered with such Preferred
Stock; (iii) the date, if any, on and after which such Securities Warrants and
the related series of Preferred Stock or Common Stock will be transferable
separately; (iv) the date on which the right to exercise such Securities
Warrants shall commence and the Expiration Date; (v) any special United States
federal income tax consequences; and (vi) any other material terms of such
Securities Warrants.
Securities Warrant certificates may be exchanged for new Securities Warrant
certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal, premium, if
any, or interest, if any, on such Debt Securities or to enforce covenants
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in the applicable Indenture. Prior to the exercise of any Securities Warrants
to purchase Preferred Stock or Common Stock, holders of such Securities Warrants
will not have any rights of holders of such Preferred Stock or Common Stock,
including the right to receive payments of dividends, if any, on such Preferred
Stock or Common Stock, or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of shares of Preferred Stock or
Common Stock, as the case may be, at such exercise price as shall in each case
be set forth in, or calculable from, the Prospectus Supplement relating to the
offered Securities Warrants. After the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Company), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Warrant Agent
payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Common Stock purchasable upon such exercise, together
with certain information set forth on the reverse side of the Securities Warrant
certificate. Securities Warrants will be deemed to have been exercised upon
receipt of payment of the exercise price, subject to the receipt within five (5)
business days, of the Securities Warrant certificate evidencing such Securities
Warrants. Upon receipt of such payment and the Securities Warrant certificate
properly completed and duly executed at the corporate trust office of the
Securities Warrant agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, issue and
deliver the Common Stock purchasable upon such exercise. If fewer than all of
the Securities Warrants represented by such Securities Warrant certificate are
exercised, a new Securities Warrant certificate will be issued for the remaining
amount of Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENT
The Warrant Agreements may be amended or supplemented without the consent
of the holders of the Securities Warrants issued thereunder to effect changes
that are not inconsistent with the provisions of the Securities Warrants and
that do not adversely affect the interests of the holders of the Securities
Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant are subject to adjustment in certain events, including (i) payment
of a dividend on the Common Stock payable in capital stock and stock splits,
combinations or reclassification of the Common Stock; (ii) issuance to all
holders of Common Stock of rights or warrants to subscribe for or purchase
shares of Common Stock at less than their current market price (as defined in
the Warrant Agreement for such series of Common Stock Warrants); and (iii)
certain distributions of evidences of indebtedness or assets (including
securities but excluding cash dividends or distributions paid out of
consolidated earnings or retained earnings or dividends payable in Common Stock)
or of subscription rights and warrants (excluding those referred to above).
No adjustment in the exercise price of, and the number of shares of Common
Stock covered by, a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from consolidated earnings or
retained earnings. No adjustment will be required unless such adjustment would
require a change of at least 1% in the exercise price then in effect. Except as
stated above, the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will not be adjusted for the issuance of
Common Stock or any securities convertible into or exchangeable for Common
Stock, or carrying the right or option to purchase or otherwise acquire the
foregoing, in exchange for cash, other property or services.
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In the event of any (i) consolidation or merger of the Company with or into
any entity (other than a consolidation or a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock); (ii) sale, transfer, lease or conveyance of all or substantially
all of the assets of the Company; or (iii) reclassification, capital
reorganization or exchange of the Common Stock (other than solely a change in
par value or from par value to no par value), then any holder of a Common Stock
Warrant will be entitled, on or after the occurrence of any such event, to
receive on exercise of such Common Stock Warrant the kind and amount of shares
of stock or other securities, cash or other property (or any combination
thereof) that the holder would have received had such holder exercised such
holder's Common Stock Warrant immediately prior to the occurrence of such event.
If the consideration to be received upon exercise of the Common Stock Warrant
following any such event consists of common stock of the surviving entity, then
from and after the occurrence of such event, the exercise price of such Common
Stock Warrant will be subject to the same anti-dilution and other adjustments
described in the second preceding paragraph, applied as if such common stock
were Common Stock.
CERTAIN PROVISIONS OF MARYLAND LAW AND OF
THE COMPANY'S CHARTER AND BYLAWS
The following paragraphs summarize certain provisions of Maryland law and
the Company's Articles of Incorporation and Bylaws. The summary does not
purport to be complete and is subject to and qualified in its entirety by
reference to Maryland law and the Articles of Incorporation and Bylaws. See
"Available Information."
THE BOARD OF DIRECTORS
The Company's Bylaws provide that the number of directors of the Company
may be established by the Board but may not be fewer than three nor more than
ten, a majority of which must be independent. Any vacancy will be filled at any
regular meeting or at any special meeting of stockholders called for that
purpose or by a majority of the remaining directors, except that a vacancy
resulting from an increase in the number of directors will be filled by a
majority of the entire Board. Pursuant to the terms of the Articles of
Incorporation, each director will hold office for a one-year term expiring at
the annual meeting of stockholders to be held the following year and until his
successor is duly elected and qualified. Holders of shares will have no right
to cumulative voting in the election of directors.
BUSINESS COMBINATIONS
As a Maryland corporation, the Company is subject to certain restrictions
concerning certain "business combinations" (including a merger, consolidation,
share exchange, or, in certain circumstances, an asset transfer or issuance or
reclassification of equity securities) between the Company and an Interested
Stockholder (defined as any person who beneficially owns 10% or more of the
voting power of the Company's shares or an affiliate of the Company who, at any
time within the two-year period prior to the date in question, was the
beneficial owner of 10% or more of the voting power of the then-outstanding
voting stock of the Company) or an affiliate thereof. Such business
combinations are prohibited for five years after the most recent date on which
the Interested Stockholder became an Interested Stockholder. Thereafter, any
such business combination must be recommended by the Board of Directors of the
Company and approved by the affirmative vote of at least 80% of the votes
entitled to be cast by holders of outstanding voting shares of the Company
voting together as a single group and of at least two-thirds of the votes
entitled to be cast by holders of voting shares other than voting shares with
whom the business combination is to be effected, unless, among other things, the
Company's stockholders receive a "minimum price" (as determined under Maryland
law) for their shares and the consideration is received in cash or in the same
form as previously paid by the Interested Stockholder for its shares. These
provisions of Maryland law do not apply, however, to business combination that
are approved or exempted by the Board of Directors of the Company prior to the
time that the Interested Stockholder becomes an Interested Stockholder.
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CONTROL SHARE ACQUISITIONS
Maryland law provides that "control shares" of a Maryland corporation
acquired in a "control share acquisition" have no voting rights except to the
extent approved by a vote of two-thirds of the votes entitled to be cast on the
matter, excluding shares of stock owned by the acquirer or by officers or
directors who are employees of the Company. "Control Shares" are voting shares
which, if aggregated with all other such shares previously acquired by such
person, or in respect of which such person is able to exercise or direct the
exercise of voting power, except solely by virtue of a revocable proxy, would
entitle the acquirer, directly or indirectly, to exercise voting power in
electing directors within any one of the following ranges of voting power:
(i) one-fifth or more but less than one-third; (ii) one-third or more but less
than a majority; or (iii) a majority of all voting power. Control shares do not
include shares the acquiring person is then entitled to vote as a result of
having previously obtained stockholder approval. A "control share acquisition"
means the acquisition of control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions (including an undertaking to pay expenses),
may compel the Board of Directors to call a special meeting of stockholders to
be held within 50 days of the demand to consider the voting rights of the
shares. If no request for a meeting is made, the Company may itself present the
question at any stockholders' meeting.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by Maryland law,
then, subject to certain conditions and limitations, the Company may redeem any
or all of the control shares (except those for which voting rights have
previously been approved) for fair value, determined without regard to the
absence of voting rights for control shares, as of the date of the last control
share acquisition or of any meeting of stockholders at which the voting rights
of such shares are considered and not approved. If voting rights for control
shares are approved at a stockholders' meeting and the acquirer becomes entitled
to vote a majority of the shares entitled to vote, all other stockholders may
exercise appraisal rights. The fair value of the shares determined for purposes
of such appraisal rights may not be less than the highest price per share paid
in the control share acquisition, and certain limitations and restrictions
otherwise applicable to the exercise of dissenter's rights do not apply in the
context of a control share acquisition.
The control share acquisition provisions of Maryland law do not apply to
shares acquired in a merger, consolidation or share exchange if the Company is a
party to the transaction, or to acquisitions which may be approved of or
exempted by the Articles of Incorporation or Bylaws of the Company. No such
provisions are currently contained in the Company's Articles of Incorporation or
Bylaws. There can be no assurance, however, that such provisions will not be
provided for in the future.
AMENDMENT TO THE ARTICLES OF INCORPORATION
The Company's Articles of Incorporation may be amended only by the
affirmative vote of the holders of not less than two-thirds of all of the votes
entitled to be cast on the matter.
DISSOLUTION OF THE COMPANY
The dissolution of the Company must be approved by the affirmative vote of
the holders of not less than two-thirds of all of the votes entitled to be cast
on the matter or the written consent of all holders of shares entitled to vote
on this matter.
ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND NEW BUSINESS
The Company's Articles of Incorporation establish an advance notice
procedure for stockholders to make nominations of candidates for election as
directors or bring other business before an annual meeting of stockholders
("Stockholder Notice Procedures").
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The Stockholder Notice Procedures provide that (1) only persons who are
nominated by or at the direction of the Board of Directors, or by a stockholder
who has given timely written notice containing specified information to the
Secretary of the Company prior to the meeting at which directors are to be
elected, will be eligible for election as directors and (2) at an annual meeting
only such business may be conducted as has been brought before the meeting by or
at the direction of the Chairman of the Board of Directors or by a stockholder
who has given timely written notice to the Secretary of such stockholder's
intention to bring such business before the meeting. In general, to be
considered timely, notice of stockholder nominations to be made or business to
be conducted at an annual meeting must be received not less than 60 days nor
more than 90 days prior to the first anniversary of the previous year's annual
meeting.
The purpose of requiring such advance notice by stockholders is to provide
the Board of Directors a meaningful opportunity to consider the qualifications
of the proposed nominees or the advisability of the other proposed business and,
to the extent deemed necessary or advisable by the Board of Directors, to inform
stockholders and make recommendations about such qualifications or business, as
well as to provide a more orderly procedure for conducting meetings of
stockholders. Although the Company's Article of Incorporation do not give the
Board of Directors any power to disapprove of stockholder nominations or
proposals for action, they may have the effect of precluding a contest for the
election of directors or the consideration of stockholder proposals if the
proper procedures are not followed. In addition, the Articles of Incorporation
may discourage or deter a third party from conducting a solicitation of proxies
to elect its own slate of directors or to approve its own proposal, without
regard to whether consideration of such nominees or proposals might be harmful
or in the best interests of the Company and its stockholders. The provisions in
the Company's Articles of Incorporation regarding advance notice provisions
could have the effect of discouraging a takeover or other transaction in which
holders of some, or a majority, of the shares of Common Stock might receive a
premium for their shares over the then prevailing market price or which such
holders might believe to be otherwise in their best interests.
FEDERAL INCOME TAX CONSIDERATIONS RELATING TO
THE COMPANY'S REIT STATUS
The following is a summary of certain federal income tax considerations
regarding the Company's REIT election. The tax treatment of a holder of any of
the Securities will vary depending on the terms of the specific Securities
acquired by such holder, as well as his particular situation, and this
discussion does not attempt to address any aspects of federal income taxation
relating to holders of Securities. A description of certain federal income tax
considerations pertaining to holders of the Securities will be provided in the
relevant Prospectus Supplement.
The following summary is based on federal income tax law in effect as of
the date hereof. Such law is subject to change without notice, and may be
changed with retroactive effect. The summary is for general information only,
and does not constitute tax advice.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT THE APPLICABLE PROSPECTUS
SUPPLEMENT, AS WELL AS HIS OWN TAX ADVISOR, REGARDING THE SPECIFIC FEDERAL,
STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES, IN LIGHT OF HIS INDIVIDUAL
CIRCUMSTANCES, OF THE ACQUISITION, OWNERSHIP AND SALE OF THE SECURITIES, AND OF
POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
QUALIFICATION AS A REIT; OPINION OF COUNSEL
The Company's REIT election was effective as of January 1, 1994. The tax
consequences described herein and in any Prospectus Supplement are largely
contingent on the qualification of the Company as a REIT for federal income tax
purposes. Failure of the Company to maintain its REIT status would materially
alter the tax and economic consequences to a purchaser. See "Failure to Qualify
as a REIT" below. Ungaretti & Harris, Chicago, Illinois ("Counsel"), has
provided its opinion that the Company's method of operation as described herein
and as represented by the Company will permit it to continue to qualify as a
REIT for the current and subsequent taxable years. Such opinion is based upon
the Code, as amended, applicable Treasury Regulations adopted thereunder,
reported judicial decisions, and IRS rulings, all as of the date hereof, and
certain representations of the Company
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and factual assumptions related to the ownership and operation of the Company.
It should be noted that whether the Company will maintain its status as a REIT
under the Code will depend upon whether the Company meets the various
qualification tests imposed under the Code through actual annual operating
results. No assurance can be given that the actual results of the Company's
operations will satisfy such requirements. The principal requirements the
Company must meet to maintain its status as a REIT are described below.
SHARE OWNERSHIP
FREE TRANSFERABILITY. In general, shares representing ownership of a REIT
must be freely transferable. The Company's shares will be subject to certain
restrictions designed to assure compliance with the rule prohibiting closely-
held status, described below. A REIT will not fail the requirement of free
transferability by reason of such restrictions.
100 STOCKHOLDERS REQUIRED. The beneficial ownership of an entity seeking
to qualify as a REIT must be held by 100 or more persons. This requirement must
be met for at least 335 days of a 12-month year, or a proportionate part of a
shorter tax year. For purposes of this rule, the word "person" generally
includes individuals and entities, with pension and profit-sharing trusts,
rather than their beneficiaries, being treated as persons. The Company
anticipates that this requirement will continue to be met.
CLOSELY-HELD STATUS NOT PERMITTED. An entity does not qualify as a REIT if
a group of five or fewer individuals own, directly or indirectly, more than 50%
of the value of the outstanding shares of the entity at any time during the last
half of the taxable year. For this purpose, certain entities are treated as
individuals, but stock owned, directly or indirectly, by a corporation,
partnership, estate or trust is generally considered as being owned
proportionately by such entity's stockholders, partners or beneficiaries.
Accordingly, shares held by CRP-London will be considered as being owned
proportionately by the individual stockholders of CRP-London. The Articles of
Incorporation provide certain restrictions on ownership of shares designed to
assure compliance with this requirement.
REVENUE RECONCILIATION ACT OF 1993. Under the 1993 Act, pension funds
generally will not be treated as a single person for purposes of this rule.
Instead, the beneficiaries of the fund are treated as holding stock in the REIT
in proportion to their actuarial interests in the fund. In the event the
Company relies on this rule to maintain its status as a REIT, however, it is
possible that pension funds holding more than 10% of the interests in the
Company will be subject to unrelated business income tax on a portion of the
dividends they receive from the Company. Under the Company's Articles of
Incorporation, pension funds are subject to the same ownership restrictions as
other persons, without regard to this recent law.
STOCKHOLDER INFORMATION. Federal income tax regulations require that the
Company demand within 30 days after the end of each of its taxable years written
statements from stockholders of record holding more than a specified percentage
of the Company's stock, in which the stockholders set out information with
respect to their actual and constructive ownership of the Common Stock and the
Debentures. In addition, each stockholder must on demand disclose to the
Company in writing such additional information as the Company requests in order
to determine the effect of such stockholder's direct, indirect and constructive
ownership of such shares on the Company's status as a REIT.
ASSET TESTS
An entity seeking to maintain its qualification as a REIT must meet certain
tests with regard to its assets. Assets held by a qualified REIT subsidiary are
treated as if they were owned directly by the REIT. A corporation is a
qualified REIT subsidiary if 100% of its stock is owned by a REIT during the
entire period of its existence.
75% ASSET TEST. On the last day of each calendar quarter, at least 75% of
a REIT's assets must consist of real estate assets, cash and cash items, and
government securities. Real estate assets include interests in real property,
interests in mortgages on real property, and shares in other qualified REITs.
In addition, real estate assets include any property attributable to the
temporary investment of new capital if the property is stock or a debt
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instrument, and the investment is only for the one-year period beginning on the
date the REIT receives the capital (a "Qualified Temporary Investment"). Cash
and cash items include receivables that arise in the ordinary course of the
REIT's business, but not receivables purchased from another person. It is
anticipated that substantially all of the Company's assets will qualify under
this test.
5% ASSET TEST. A REIT must not own securities of any one non-governmental
issuer (other than another qualified REIT, or a qualified REIT subsidiary) in an
amount greater in value than 5% of the value of the REIT's total assets. The
Company intends to comply with this requirement.
10% ASSET TEST. A REIT must not own securities of any one non-governmental
issuer (other than another qualified REIT or a qualified REIT subsidiary)
representing more than 10% of the outstanding voting securities of such issuer.
The Company intends to comply with this requirement.
After initially meeting the asset tests at the close of any quarter, the
Company will not lose its status as a REIT for failure to satisfy the asset
tests at the end of a later quarter solely by reason of changes in asset values.
If the failure to satisfy the asset tests results from an acquisition of
securities or other property during a quarter, the failure can be cured by
disposition of sufficient non-qualifying assets within 30 days after the close
of the quarter. The Company intends to maintain adequate records of the value
of its assets to ensure compliance with the asset tests, and to take such other
actions within 30 days after the close of any quarter as may be required to cure
any noncompliance.
INTEREST IN MANAGEMENT CORPORATION. The Company expects to derive some of
its income from activities (such as management of properties owned by third
parties) which, if carried on directly by the Company or by an entity controlled
by the Company, would jeopardize its REIT status. The Company will own non-
voting stock representing more than 90 percent of the value of corporations
carrying on such activities, but intends to own less than 10% of the voting
stock of such corporations in order to comply with the 10% asset test described
above, and to hold stock in such corporations representing less than 5% of the
value of its overall assets in order to comply with the 5% assets test described
above. There can be no assurance, however, that the IRS will not contend that
the non-voting stock held by the Company should be considered voting stock for
purposes of these rules, or that the value of the stock held by the Company
exceeds the 5% limitation.
INCOME TESTS
An entity will not maintain its qualification as a REIT unless its income
meets certain tests. In connection with these tests, income received from a
qualified REIT subsidiary is treated as having the same character as it had when
received by the subsidiary.
75% INCOME TEST. At least 75% of the REIT's gross income (excluding gross
income from "prohibited transactions," as described below) for each taxable year
must be derived from (i) rents from real property, (ii) interest on obligations
collateralized by mortgages on, or interests in, real property; (iii) gain from
the sale or other disposition of interests in real property and real estate
mortgages, other than gain from property held primarily for sale to customers in
the ordinary course of the Company's trade or business ("dealer property"); (iv)
dividends or other distributions on shares in other REITs as well as the gain
from the sale of such shares; (v) abatements and refunds of real property taxes;
(vi) income from the operation, and gain from the sale, of property acquired at
or in lieu of foreclosure of the mortgage collateralized by such property
("foreclosure property"); (vii) commitment fees received for agreeing to make
loans collateralized by mortgages on real property or to purchase or lease real
property; and (viii) certain qualified temporary investment income.
95% INCOME TEST. At least 95% of the REIT's gross income (excluding gross
income from "prohibited transactions") for each taxable year must be derived
from sources qualifying for the 75% test, plus dividend or interest income or
capital gain on the sale or other disposition of stocks or securities.
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RENTS FROM REAL PROPERTY. Rents received by the Company will constitute
"rents from real property," qualifying for the 75% and 95% income tests, if the
following requirements are met:
- The amount of rent received generally must not be based in whole or in
part on the income or profits of any person.
- Rents will not qualify as "rents from real property" if the REIT, or a
10% owner of the REIT, owns directly or indirectly a 10% or greater
interest in any tenant or in the assets or net profits of a tenant.
- The term "rents from real property" does not include rents with
respect to any property with respect to which the REIT furnishes or
renders "disqualifying services" to tenants other than through an
independent contractor (as specially defined for this purpose) from
whom the REIT itself does not derive or receive any income. For this
purpose, "disqualifying services" are services which, if provided by
certain tax-exempt entities, would cause rents received by such
entities to be treated as unrelated business taxable income.
Generally, services other than services usually or customarily
rendered in connection with the rental of rooms or other space for
occupancy only are disqualifying services. Charges for services of a
type customarily furnished or rendered to tenants in connection with
the rental of real property of a similar class in the geographic
market in which the property is located qualify as "rents from real
property." The Company represents that it will not furnish or render
services with respect to any of the Properties that would cause rental
income from such Properties to fail to qualify as "rents from real
property."
- Rent attributable to personal property will not qualify as "rents from
real property" unless the personal property is leased in connection
with a lease of real property and such rent is no more than 15% of the
total rent received under the lease. Rent attributable to personal
property is that amount which bears the same ratio to total rent as
the average of the adjusted bases of the personal property at the
beginning and end of the taxable year bears to the average of the
aggregate adjusted bases of both the real property and personal
property at the beginning and end of such taxable year.
PROHIBITED TRANSACTIONS. The 75% and 95% income tests described above are
measured by reference to gross income of the Company. For this purpose,
however, gross income does not include income from "prohibited transactions."
Moreover, income from prohibited transactions is subject to a 100% tax.
The Company will be considered to have engaged in a prohibited transaction
if it sells stock in trade or other property of a kind which would properly be
included in inventory if on hand at the close of the taxable year, or property
held primarily for sale to customers in the ordinary course of business. The
Code provides a safe harbor under which certain sales of real estate assets will
not be considered to be a prohibited transaction. The safe harbor applies if
(a) the Company has held the property for at least four years; (b) the total
expenditures made by the Company, or any partner of the Company, and capitalized
as part of the basis of the property during the four-year period preceding the
sale, do not exceed 30% of the net sales price; and (c) the Company meets the
limitation on sales of such property. The Company will meet the limitation on
sales if (d) it makes no more than seven sales of property during the year, or
(e) the aggregate of the adjusted bases of the properties sold does not exceed
10% of the aggregate adjusted bases of all the Company's properties during the
year. If the property consists of land or improvements not acquired through
foreclosure, the Company must have held the property for production of rental
income for at least four years to be eligible for the safe harbor. Also, if the
Company sold more than seven properties during the year, substantially all of
the marketing and development expenditures with respect to the property must
have been made through an independent contractor from whom the Company itself
does not derive or receive any income.
FAILURE TO MEET INCOME TESTS. If certain requirements are met, the Company
may retain its status as a REIT even in a year in which it fails either the 75%
or the 95% income test. In such event, however, the Company will be subject to
an excise tax based on the greater of the amount by which it failed the 75% or
95% gross income test for that year, less expenses. The Company will qualify
for this relief if (a) it reports the amount and nature of each item of its
gross income in its federal income tax return for such year; (b) the inclusion
of any incorrect
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<PAGE>
information in its return is not due to fraud with intent to evade tax; and (c)
the failure to meet such tests is due to reasonable cause and not willful
neglect.
30% INCOME TEST. Less than 30% of a REIT's gross income must be derived
from the sale or other disposition of: (a) stock or securities held for less
than one year; (b) property in a prohibited transaction; or (c) real property
(including interests in real property and interests in mortgages on real
property) held for less than four years, other than property involuntarily
converted within the meaning of Section 1033 of the Code or foreclosure property
(as defined below).
DISTRIBUTIONS TO STOCKHOLDERS
95% DISTRIBUTION REQUIREMENT. In order to maintain its qualification as a
REIT, the Company is required to distribute dividends (other than capital gains
dividends) to its stockholders in an amount equal to 95% of the sum of (a) its
"REIT taxable income" before deduction of dividends paid and excluding any net
capital gain, plus (b) any net income from foreclosure property less the tax on
such income, minus (c) any "excess noncash income." The deduction for dividends
paid is discussed below. See "Federal Income Tax Considerations -- Taxation of
the Company."
"REIT taxable income" for purposes of this requirement is the taxable
income of a REIT, computed as if it were an ordinary corporation, adjusted by
certain items, including an exclusion for net income from foreclosure property,
a deduction for the excise tax on the failure of the 75% or 95% income tests,
and an exclusion for an amount equal to any net income derived from prohibited
transactions.
"Foreclosure property" is any real property, interest in real property, or
personal property incident to the real property, acquired by the REIT in a
foreclosure or by a deed in lieu of foreclosure following a default of a debt
obligation or after termination of a defaulted lease, provided the REIT elects
to treat the property as foreclosure property. The property ceases to be
foreclosure property two years after the REIT acquires it, unless the IRS
consents to an extension of this time period.
"Excess noncash income" means the excess of certain amounts that the REIT
is required to recognize as income in advance of receiving cash, such as
original issue discount on purchase money debt, over 5% of REIT taxable income
before deduction for dividends paid and excluding any net capital gain.
The Company intends to make distributions to the stockholders on a
quarterly basis sufficient to meet the 95% distribution requirement. However,
because of the possible receipt of income without corresponding cash receipts
under the Code's rent allocation and original issue discount rules, timing
differences that may rise between the realization of taxable income and net cash
flow, and the possible disallowance by the IRS of deductions claimed by the
Company, it is possible that the Company may not have sufficient cash or liquid
assets at a particular time to meet the 95% distribution requirement. To assure
compliance with the 95% distribution requirement, the Company will closely
monitor the relationship between its REIT taxable income and cash flow and, if
necessary, will borrow funds in order to satisfy the distribution requirement.
If the Company fails to meet the 95% distribution requirements as a result of an
adjustment to the Company's tax return by the Service, the Company may
retroactively cure the failure by paying a "deficiency dividend" (plus
applicable penalties and interest) within a specified period.
NON-REIT ACCUMULATED EARNINGS AND PROFITS. The Company will not qualify as
a REIT if, as of the close of its taxable year, it has earnings and profits
accumulated in any non-REIT year. For purposes of this rule, positive earnings
and profits of a corporation that is liquidated or merged into another
corporation may not be netted against the other corporation's deficit in
earnings and profits. The Company believes that it and each of its subsidiaries
had negative earnings and profits as of the effective date of its REIT election.
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FAILURE TO QUALIFY AS A REIT
For any taxable year the Company fails to qualify as a REIT, it would be
taxed as a corporation. It would not be entitled to a deduction for dividends
paid to its stockholders in computing its taxable income. Assets of the Company
and distributions to stockholders would be reduced to the extent necessary to
pay any resulting tax liability of the Company. Distributions from the Company
at such time would be taxable to stockholders as dividends to the extent of the
current and accumulated earnings and profits of the Company and would be
eligible for the 70% dividend-received deduction for stockholders which are
corporations.
If the Company's election to be treated as a REIT is terminated
automatically, the Company will not be eligible to elect REIT status until the
fifth taxable year which begins after the year for which the Company's election
was terminated, unless (a) the Company did not willfully fail to file a timely
return with respect to the termination taxable year, (b) the incorrect
information in such return was not due to fraud with intent to evade tax, and
(c) the Company establishes that failure to meet the requirements was due to
reasonable cause and not to willful neglect.
TAXATION OF THE COMPANY
GENERAL. In general, corporations are subject to federal income tax on
their net income regardless of whether such income is currently distributed to
stockholders. Distributions to stockholders constitute taxable dividends to the
extent of current and accumulated earnings and profits of the corporation.
Under this general rule, double taxation of corporate profits -- that is,
taxation at the corporate level and the stockholder level -- is the norm.
However, the rules pertaining to REITs provide an exception to this general
rule. Except as otherwise discussed below, for any taxable year in which the
Company qualifies as a REIT, it will generally be able to deduct for federal
income tax purposes the portion of its ordinary income or capital gain which is
timely distributed to stockholders.
Even if the Company is treated as a REIT for federal income tax purposes,
however, it is subject to tax on any REIT taxable income and net capital gain
not distributed to stockholders. The Company may reinvest income or gain
recognized upon the sale of property or repayment of an investment, although it
does not intend to do so unless it has satisfied the 95% income distribution
test. Capital gain income which is not distributed will be taxable to the
Company. The Company will not be required to distribute capital gain income to
maintain its status as a REIT. In addition, the Company will be taxed at
regular corporate tax rates on net income from foreclosure property which is not
otherwise REIT qualifying income. Any tax incurred by the Company for these
reasons, or for any of the reasons discussed below, would reduce the amount of
cash available for distribution to stockholders, and ultimately reduce the
return on an investment in shares of the Company.
DIVIDENDS PAID DEDUCTION. For any taxable year it qualifies as a REIT, the
Company can claim the dividends paid deduction for dividends actually and
constructively paid during that tax year. The Company can also claim a
dividends paid deduction for dividends paid in the following year if it declares
the dividends before the time prescribed by law for filing its return for the
year, including extensions, and distributes the amount of the dividend during
the 12-month period following the close of the year but not later than the date
of the first regular dividend payment made after the declaration. In this
event, the Company will be required to specify the dollar amount of the
dividend, and send any notices required with respect to the dividend not later
than 30 days after the close of the tax year or by mail with its annual report
for the tax year. Certain so-called consent dividends declared in subsequent
years are also eligible for the dividends paid deduction.
TAX ON BUILT-IN GAIN. The Internal Revenue Service has announced its
intention to issue regulations dealing with "built-in gain" of REITs. A REIT
has built-in gain to the extent it has, at the time its status as a REIT
commences, any asset with a fair market value in excess of its adjusted tax
basis. The regulations would provide that a corporation that becomes a REIT
recognizes net built-in gain, and pays corporate level tax, as if it had been
liquidated at the end of the last taxable year before it qualified as a REIT
unless it makes an election under which it will recognize such gain only upon
disposition of such assets within the first ten years after it became a REIT.
If the election is made, the portion of any gain on such dispositions that is
built-in gain is taxable to the REIT without regard to whether the gain is
distributed to stockholders.
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Some or all of the assets held by the Company on January 1, 1994, the
effective date of its REIT election, had built-in gain. The Company made the
election described above. The Company will therefore recognize built-in gain
only upon disposition of those assets prior to January 1, 2004. If such a
disposition occurs, the corporate level tax paid by the Company will reduce the
amount available for distribution to stockholders.
EXCISE TAX ON FAILURE TO MEET 75% OR 95% INCOME TESTS. Regardless of
distributions to stockholders, if the Company fails either or both of the 75%
and 95% income tests, but still maintains its qualification as a REIT, it will
be subject to an excise tax on an amount equal to the greater of the amount by
which it failed the 75% test or the 95% test multiplied by a fraction the
numerator of which is REIT taxable income (determined without deductions for
dividends paid or net operating losses and excluding capital gains) and the
denominator of which is the gross income of the REIT (determined, generally, by
excluding income from prohibited transactions, certain gross income from
foreclosure property, long-term capital gain, and short-term capital gain to the
extent of any short-term capital loss).
100% TAX ON PROHIBITED TRANSACTIONS. To the extent the Company derives any
net income from a prohibited transaction, the Company will be subject to a 100%
tax on such net income.
ALTERNATIVE MINIMUM TAX. The Company will also be subject to the
alternative minimum tax on items of tax preference allocable to it. The Code
authorizes the Treasury Department to issue regulations allocating items of tax
preference between a REIT and its shareholders. Such regulations have not been
issued. The Company does not expect to have any significant items of tax
preference.
4% EXCISE TAX. A 4% excise tax applies if a REIT's "distributed amount"
for any year is less than its "required distribution." For this purpose, the
required distribution is specially defined, and does not correspond to the
amount the REIT must distribute in order to maintain its status as a REIT. The
required distribution is (a) 85% of the REIT's ordinary income for the year,
plus (b) 95% of the REIT's capital gain net income reduced by any net ordinary
loss. This amount must be "grossed up" for certain amounts of undistributed
income from prior years. For purposes of this rule, the REIT's ordinary income
is determined without regard to the dividends paid deduction. The distributed
amount includes dividends paid during the calendar year, plus any tax imposed on
REIT taxable income or capital gains, plus any excess of the distributed amount
for the preceding calendar year over the grossed up required distribution for
the preceding year.
TAX ELECTIONS. The Company's taxable year ends December 31. The Company
uses the accrual method of accounting. The effective date of the Company's
election to be taxed as a REIT is January 1, 1994.
STATE AND LOCAL TAXES
The Company may be subject to state and local taxes in various
jurisdictions such as those in which the Company owns property or may be deemed
to be engaged in activities. The tax treatment of the Company in states having
taxing jurisdiction over it may differ from the federal income tax treatment
described in this summary. No discussion of state taxation of the Company, the
shares or the stockholders is provided herein.
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offer and sale by them or may sell Securities offered hereby to investors
directly or through agents. Any underwriter or agent involved in the offer and
sale of the Securities will be named in the applicable Prospectus Supplement.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at prices
related to the prevailing market prices at the time of sale or at negotiated
prices (any of which may represent a discount from the prevailing market
prices). The Company also may, from time to time, authorize underwriters acting
as the Company's agents to offer and sell the Securities upon the terms and
conditions as are set forth in the applicable Prospectus Supplement. In
connection with the sale of
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Securities, underwriters may be deemed to have received compensation from the
Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Securities for whom they may act as
agent. Underwriters may sell Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize the underwriters, dealers or other persons acting as the Company's
agents to solicit offers by certain institutions to purchase Securities from the
Company at the public offering price set forth in such Prospectus Supplement
pursuant to Delayed Delivery Contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and the aggregate principal amount
of Securities sold pursuant to Contracts will not be less than nor greater than,
the respective amounts stated in the applicable Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions but
will in all cases be subject to the approval of the Company. Contracts will not
be subject to any conditions except that (i) the purchase by an institution of
the Securities covered by its Contract will not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject; and (ii) if the Securities are being sold to
underwriters, the Company has sold to such underwriters the total principal
amount of the Securities less the principal amount thereof covered by the
Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
subsidiaries in the ordinary course of business.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Ungaretti &
Harris, Chicago, Illinois. Ungaretti & Harris will rely on the opinion of
Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, Baltimore, Maryland, as
to certain matters of Maryland law.
EXPERTS
The financial statements and financial statement schedules included in the
Company's Annual Report on Form 10-K, incorporated by reference in this
Prospectus, to the extent and for the periods indicated in their report, have
been audited by Coopers & Lybrand L.L.P., independent accountants, and are
included herein in reliance upon the authority of those experts in giving their
report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the securities being
registered:
SEC Registration Fee. . . . . . . . . . . . . $60,606.06
NASD Fee. . . . . . . . . . . . . . . . . . . 10,000.00
Exchange Listing Fee. . . . . . . . . . . . . *
Fees for Rating Agencies. . . . . . . . . . . *
Printing and Engraving Expenses . . . . . . . *
Trustee, Transfer Agent and Registrar Expenses *
Legal Fees and Expenses . . . . . . . . . . . *
Accounting Fees and Expenses. . . . . . . . . *
Blue Sky Fees and Expenses. . . . . . . . . . *
Miscellaneous . . . . . . . . . . . . . . . . *
Total. . . . . . . . . . . . . . . . . . $ *
-----------
-----------
________________________
* To be completed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws authorize the Company to
indemnify its present and former directors and officers and to pay or reimburse
expenses for such individuals in advance of the final disposition of a
proceeding to the maximum extent permitted by Maryland law. The Maryland
General Corporation Law ("MGCL") permits a corporation to indemnify its present
and former directors and officers against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those capacities unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to the proceeding and
(i) was committed in bad faith or (ii) was the result of active and deliberate
dishonesty; (b) the director or officer actually received an improper personal
benefit in money, property or services; or (c) in case of any criminal
proceeding, the director or officer had reasonable cause to believe the act or
omission was unlawful.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) it is proved that the person actually received an improper benefit or profit
in money, property or services, or (ii) a judgment or other final adjudication
is entered in a proceeding based on a finding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. The Company's
charter contains a provision providing for elimination of the liability of its
directors or officers to the Company or its stockholders for money damages to
the maximum extent permitted by Maryland law from time to time.
ITEM 16. EXHIBITS
The following exhibits are included as part of this Registration Statement:
EXHIBIT DESCRIPTION
------- -----------
*1.1 Form of underwriting agreement
3.1 Amended and Restated Articles of Incorporation
3.2 Amended and Restated By-Laws
**4.1 Form of certificate representing common stock
*4.2 Form of certificate representing preferred stock
4.3 Form of Senior Securities Indenture
II-1
<PAGE>
4.4 Form of Subordinated Securities Indenture
*4.5 Form of warrant agreement
*5 Opinion Letter of Ungaretti & Harris regarding the validity of
the securities being registered
*8 Opinion Letter of Ungaretti & Harris regarding certain tax
matters
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ungaretti & Harris (included as part of Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on signature page)
___________________
* To be filed by amendment.
** Incorporated by reference from the Company's Registration Statement
on Form S-11 (File No. 33-69710).
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for
purposes of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Chicago, Illinois, on the 16th day of December, 1996.
CENTERPOINT PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
---------------------------
John S. Gates, Jr., President and
Chief Executive Officer
By: /s/ Paul S. Fisher
---------------------------
Paul S. Fisher, Executive Vice President
and Chief Financial Officer
(Principal Financial and Accounting
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the date indicated. Each of the following persons does
hereby authorize and designate John S. Gates, Jr., Paul S. Fisher and Robert L.
Stovall, or any of them, as attorneys-in-fact with full power of substitution,
to execute in the name and on behalf of such person, individually and in each
capacity stated below, and to file any and all amendments to this registration
statement, including any and all pre-effective and post-effective amendments.
Signature Name and Title Date
/s/ Martin Barber Martin Barber, Chairman and December 16, 1996
- --------------------------- Director
/s/ John S. Gates, Jr. John S. Gates, Jr., December 16, 1996
- --------------------------- President, Chief Executive
Officer and Director
/s/ Robert L. Stovall Robert L. Stovall, Executive December 16, 1996
- --------------------------- Vice President, Chief Operating
Officer and Director
/s/ Nicholas C. Babson Nicholas C. Babson December 16, 1996
- --------------------------- Independent Director
/s/ Alan D. Feld Alan D. Feld December 16, 1996
- --------------------------- Independent Director
/s/ John J. Kinsella John J. Kinsella December 16, 1996
- --------------------------- Independent Director
s/s Thomas E. Robinson Thomas E. Robinson December 16, 1996
- --------------------------- Independent Director
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
*1.1 Form of underwriting agreement.
3.1 Amended and Restated Articles of Incorporation
3.2 Amended and Restated By-Laws
**4.1 Form of certificate representing common stock.
*4.2 Form of certificate representing preferred stock.
4.3 Form of Senior Securities Indenture.
4.4 Form of Subordinated Securities Indenture.
*4.5 Form of warrant agreement.
*5 Opinion Letter of Ungaretti & Harris regarding the validity
of the securities being registered.
*8 Opinion Letter of Ungaretti & Harris regarding certain tax matters.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ungaretti & Harris (included as part of Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on signature page).
* To be filed by amendment.
** Incorporated by reference from the Company's Registration Statement on Form
S-11 (File No. 33-69710).
<PAGE>
ARTICLES OF INCORPORATION
OF
MIDCONTINENT REIT, INC.
THIS IS TO CERTIFY THAT:
ARTICLE I
INCORPORATOR
The undersigned, Bruce P. Golden, whose address is Three First National
Plaza, Suite 3500, Chicago, Illinois 60602, Chicago, Illinois, being at least 18
years of age, does hereby form a corporation under the general laws of the State
of Maryland.
ARTICLE II
NAME
The name of the corporation ("Corporation") is:
MidContinent REIT, Inc.
ARTICLE III
PURPOSE OF CORPORATION
The purpose for which the Corporation is formed. and the business or
objects to be carried on and promoted by it within the State of Maryland or
elsewhere, is to engage in any lawful act or activity for which corporations may
be formed under the Maryland General Corporation Law, as now or hereafter in
force, to do everything necessary, proper, advisable and convenient to
accomplish the purposes herein set forth, and to do all other things incidental
thereto or connected therewith which are not forbidden by the laws of the State
of Maryland as now or hereafter in force or by these Articles of Incorporation.
Without limiting the generality of the foregoing, the Corporation may
engage in business as a real estate investment trust under the Internal Revenue
Code of 1986, as amended, or any successor statute (the "Code"). For purposes of
these Articles of Incorporation, "REIT" shall mean a real estate investment
trust as described in the Code.
<PAGE>
ARTICLE IV
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The post office address of the principal office of the Corporation in the
State of Maryland is c/o The Prentice-Hall Corporation System, Maryland, 11 E.
Chase St., Baltimore, MD 21202. The name of the resident agent of the
Corporation in the State of Maryland is The Prentice-Hall Corporation System,
Maryland, 11 E. Chase St., Baltimore, MD 21202. The resident agent is a
corporation in the State of Maryland.
ARTICLE V
CAPITAL STOCK
Section 1. AUTHORIZED SHARES. The total number of shares of stock
which the Corporation has authority to issue is 60,000,000 shares, of which
50,000,000 are shares of Common Stock, par value $.001 per share ("Common
Stock"), and 10,000,000 shares are shares of Series Preferred Stock, par value
$.001 per share ("Preferred Stock''). The aggregate par value of all authorized
shares of stock having par value is $60,000.00.
Section 2. VOTING RIGHTS. Subject to the provisions of Article VII
regarding Excess Stock (as such item is defined therein), each share of Common
Stock shall entitle the holder thereof to one vote.
Section 3. ISSUANCE OF PREFERRED STOCK. The Preferred Stock may be
issued, from time to time, in one or more series as authorized by the Board of
Directors. Prior to issuance of shares of each series of Preferred Stock, the
Board or Directors by resolution shall distinguish it from all other series of
Preferred Stock and classes of capital stock of the corporation, shall specify
the number of shares to be included in that series of Preferred Stock and,
subject to the provisions of Article VII regarding Excess Stock, shall set the
terms, preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption. Subject to the express terms of any other series of
Preferred Stock outstanding at the time and notwithstanding any other provision
of these Articles of Incorporation, the Board of Directors may increase or
decrease the number of shares of any series of Preferred Stock by setting or
changing, in any one or more respects from time to time before issuing the
shares, and, subject to the provisions of Article VII regarding Excess Stock,
the terms, preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption of the shares of any series of Preferred Stock.
Section 4. ARTICLES OF INCORPORATION AND BYLAWS. All persons who shall
acquire stock in the Corporation at any time and from time to time shall acquire
the same subject to the provisions of these Articles of Incorporation and the
Bylaws of the Corporation.
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ARTICLE VI
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 1. NUMBER AND CERTIFICATION. The number of directors of the
Corporation initially shall be three, which number may be increased or decreased
pursuant to the Bylaws of the Corporation; provided, however, that (a) if there
is stock outstanding and so long as there are three or more stockholders, the
number of directors shall never be less than three and (b) if there is stock
outstanding and so long as there are less than three stockholders, the number of
directors may be less than three but not less than the number of stockholders.
The names of the directors who shall serve effective immediately and until the
first annual meeting of stockholders and until their successors are duly elected
and shall qualify are:
Martin Barber
John S. Gates, Jr.
Robert L. Stovall
At the first annual meeting of stockholders, and at each annual meeting
thereafter, the stockholders shall elect the directors who shall serve until
their successors are duly elected and shall qualify.
Section 2. REMOVAL. A director may be removed, with or without cause,
by the stockholders upon the affirmative vote of a majority of all of the votes
entitled to be cast for the election of directors. A director may be removed,
with or without cause, by the Board of Directors upon the affirmative vote of a
majority of the then acting directors. A special meeting of the stockholders or
the Board of Directors may be called, in accordance with the Bylaws of the
Corporation, for the purpose of removing a director.
Section 3. AUTHORIZATION BY BOARD OF CAPITAL STOCK ISSUANCE. The Board
of Directors of the Corporation may authorize the issuance from time to time of
shares of its stock of any class, whether now or hereafter authorized, or
securities convertible into shares of its stock of any class, whether now or
hereafter authorized, for such consideration as the Board of Directors in its
sole discretion may deem advisable, subject to such restrictions or limitations,
if any, as may be set forth in these Articles of Incorporation or the Bylaws of
the Corporation or in the general laws of the State of Maryland.
Section 4. PREEMPTIVE RIGHTS. Except as may be provided by the Board
of Directors in authorizing the issuance of shares of Preferred Stock pursuant
to Article V, Section 3, no holder of shares of stock of the Corporation shall,
as such holder, have any preemptive right to purchase or subscribe for any
additional shares of the stock of the Corporation or any other security of the
Corporation which it may issue or sell.
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Section 5. INDEMNIFICATION. The Corporation shall have the power, to
the maximum extent permitted by Maryland law in effect from time to time, to
obligate itself to indemnify, and to pay or reimburse expenses under the
procedure provided by such Maryland law in advance of final disposition of a
proceeding to, (i) any individual who is a present or former director or officer
of the Corporation or (ii) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
The Corporation shall have the power, with the approval of its Board of
Directors, to provide such indemnification and advancement of expenses to a
person who served a predecessor of the Corporation in any of the capacities
described in (i) or (ii) above and to any employee or agent of the Corporation
or a predecessor of the Corporation.
Section 6. ADVISOR AGREEMENTS. Subject to such approval of
stockholders and other conditions, if any, as may be required by any applicable
statute, rule or regulation, the Board of Directors may authorize the execution
and performance by the Corporation of one or more agreements with any person,
corporation, association, company, trust, partnership (limited or general) or
other organization whereby, subject to the supervision and control of the Board
of Directors, any such other person, corporation, association, company, trust,
partnership (limited or general) or other organization (the "Advisor") shall
render or make available to the Corporation managerial, investment, advisory
and/or related services, office space and other services and facilities
(including, if deemed advisable by the Board of Directors, the management or
supervision of the investments of the Corporation) upon such terms and
conditions as may be provided in such agreement or agreements (including, if
deemed fair and equitable by the Board of Directors, the compensation payable
thereunder by the Corporation).
Section 7. RELATED PARTY TRANSACTIONS. Without limiting any other
procedures available by law or otherwise to the Corporation, the Board of
Directors may authorize any agreement of the character described in Section 6 of
this Article VI or other transaction with any person, corporation, association,
company, trust, partnership (limited or general) or other organization, although
one or more of the directors or officers of the Corporation may be a party to
any such agreement or an officer, director, stockholder or member of such other
party, and no such agreement or transaction shall be invalidated or rendered
void or voidable solely by reason of the existence of any such relationship if
the existence is disclosed or known to the Board of Directors, and the contract
or transaction is approved by the affirmative vote of a majority of the
disinterested directors, even if they constitute less than a quorum of the
Board. Any director of the Corporation who is also a director, officer,
stockholder or member of such other entity may be counted in determining the
existence of a quorum at any meeting of the Board of Directors considering such
matter.
Section 8. DETERMINATION BY BOARD. The determination as to any of the
following matters, made in good faith by or pursuant to the direction of the
Board of Directors consistent with these Articles of Incorporation and in the
absence of actual receipt of an improper benefit in money, property or services
or active and deliberate dishonesty established by a court, shall be final and
conclusive and shall be binding upon the Corporation and every holder of shares
of its
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stock: the amount of the net income of the Corporation for any period and the
amount of assets at any time legally available for the payment of dividends,
redemption of its stock or the payment of other distributions on its stock; the
amount of paid-in surplus, net assets, other surplus, annual or other net
profit, net assets in excess of capital, undivided profits or excess of profits
over losses on sales of assets; the amount, purpose, time of creation, increase
or decrease, alteration or cancellation of any reserves or charges and the
propriety thereof (whether or not any obligation or liability for which such
reserves or charges shall have been created shall have been paid or discharged);
the fair value, or any sale, bid or asked price to be applied in determining the
fair value, of any asset owned or held by the Corporation, and any matters
relating to the acquisition, holding and disposition of any assets by the
Corporation.
Section 9. RESERVED POWERS OF BOARD. The enumeration and definition of
particular powers of the Board of Directors included in this Article VI shall in
no way be limited or restricted by reference to or inference from the terms of
any other clause of this or any other provision of these Articles of
Incorporation, or construed or deemed by inference or otherwise in any manner to
exclude or limit the powers conferred upon the Board of Directors under the
general laws of the State of Maryland as now or hereafter in force.
ARTICLE VII
RESTRICTION ON TRANSFER
ACQUISITION AND REDEMPTION OF SHARES
Section 1. DEFINITIONS. For the purpose of this Article VII, the
following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Equity Stock (as
hereinafter defined) by a Person (as hereinafter defined) who would be treated
as an owner of such Equity Stock under Section 542(a)(2) of the Code or any
successor statute either directly or constructively through the application of
Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code or any
successor statute. The terms "Beneficial Owner," Beneficially Owns,"
"Beneficially Own" and "Beneficially Owned" shall have the correlative meanings.
"Beneficiary" shall mean the beneficiary of the Trust (as hereinafter
defined) as determined pursuant to Section 19 of this Article VII.
"Debt" shall mean indebtedness of (i) the Corporation or (ii) any
subsidiary thereof.
"Equity Stock" shall mean capital stock that is either Common Stock or
Preferred Stock.
"Market Price" shall mean the last reported sales price reported on
the New York Stock Exchange of Common Stock or Preferred Stock, as the case may
be, on the trading day immediately preceding the relevant date, or if not then
traded on the New York Stock Exchange,
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the last reported sales price of the Common Stock or Preferred Stock, as the
case may be, on the trading day immediately preceding the relevant date as
reported on any exchange or quotation system over which the Common Stock or
Preferred Stock, as the case may be, may be traded, or if not then traded over
any exchange or quotation system, then the market price of the Common Stock or
Preferred Stock, as the case may be, on the relevant date as determined in good
faith by the Board of Directors of the Corporation.
"Ownership Limit" shall initially mean 9.8%, in number of shares or
value, of the outstanding Equity Stock of the corporation, and after any
adjustment as set forth in Section 10 of this Article VII, shall mean such
greater percentage of the outstanding Equity Stock as so adjusted. The number
and value of shares of the outstanding Equity Stock of the Corporation shall be
determined by the Board of Directors in good faith, which determination shall be
conclusive for all purposes hereof.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a)) or 501(c)(17) of the
Code or any successor statutes), a portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c) of the
Code or any successor statute, association, private foundation within the
meaning of Section 509(a) of the Code or any successor statute, joint stock
company or other entity; but does not include an underwriter which participated
in the Public Offering of the Common Stock and or in any subsequent public
offering registered under the Act of any capital stock of the Corporation for a
period of 30 days following the purchase by such underwriter of the Common Stock
and/or capital stock.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer which results in Excess Stock (as defined in Section 3 of
this Article VII), the purported beneficial transferee for whom the Purported
Record Transferee (as hereinafter defined) would have acquired shares of Equity
Stock, if such transfer had been valid under Section 2 of this Article VII.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Stock, the record Holder of the
Equity Stock if such transfer had been valid under Section 2 of this Article
VII.
"Restriction Termination Date" shall mean the first day on which the
Board of Directors of the Corporation determines that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of Equity Stock (including (i) the granting of any option or
entering into any agreement for the sale, transfer or other disposition of
Equity Stock or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Equity Stock, but
excluding the exchange of Debt for Equity Stock), whether by operation of law or
otherwise. The terms "Transfers" and "Transferred" shall have the correlative
meanings.
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"Trust" shall mean the trust created pursuant to Section 15 of this
Article VII.
"Trustee" shall mean the Corporation as trustee for the Trust, and any
successor trustee appointed by the Corporation.
Section 2. OWNERSHIP LIMITATION. (i) Except as provided in Section 12
of this Article VII, until the Restriction Termination Date, no Person shall
Beneficially own shares of Common Stock and/or Preferred Stock in excess of the
Ownership Limit.
(ii) Except as provided in Section 11 of this Article VII, prior
to the Restriction Termination Date, any Transfer that, if effective, would
result in any Person Beneficially Owning Common Stock and/or Preferred Stock in
excess of the Ownership Limit shall be void AB INITIO as to the Transfer of such
shares of Common Stock and/or Preferred Stock which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit; and the
intended transferee shall acquire no rights in such shares of Common Stock
and/or Preferred Stock.
(iii) Except as provided in Section 11 of this Article VII, prior
to the Restriction Termination Date, any Transfer that, if effective, would
result in the Common Stock and/or Preferred Stock being Beneficially Owned by
less than 100 Persons (determined without reference to any rules of attribution)
shall be void AB INITIO as to the Transfer of such shares of Common Stock and/or
Preferred Stock which would be otherwise Beneficially Owned by the transferee;
and the intended transferee shall acquire no rights in such shares of Common
Stock and/or Preferred Stock.
(iv) Prior to the Restriction Termination Date, any Transfer
that, if effective, would result in the Corporation being "closely held" within
the meaning of Section 856(h) of the Code or any successor statute shall be void
AB INITIO as to the Transfer of the shares of Common Stock and/or Preferred
Stock which would cause the Corporation to be "closely held" within the meaning
of Section 856(h) of the Code or any successor statute; and the intended
transferee shall acquire no rights in such shares of Common Stock and/or
Preferred Stock.
Section 3. EXCESS STOCK. (i) If, notwithstanding the other provisions
contained in this Article VII, at any time prior to the Restriction Termination
Date, there is a purported Transfer or other change in the capital structure of
the Corporation (except for a change resulting from the exchange of Debt for
Equity Stock) such that any Person would Beneficially Own Common Stock and/or
Preferred Stock in excess of the Ownership Limit, then, except as otherwise
provided in Section 11, such shares of Common Stock and/or Preferred Stock in
excess of such Ownership Limit (rounded up to the nearest whole share) shall
constitute "Excess Stock" and be treated as provided in this Article VII. Such
designation and treatment shall be effective as of the close of business on the
business day prior to the date of the purported Transfer or change in capital
structure (except for a change resulting from the exchange of Debt for Equity
Stock).
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(ii) If, notwithstanding the other provisions contained in this
Article VII, at any time prior to the Restriction Termination Date, there is a
purported Transfer or other change in the capital structure of the Corporation
(except for a change resulting from the exchange of Debt for Equity Stock)
which, if effective, would cause the corporation to become "closely held" within
the meaning of Section 856(h) of the Code or any successor statute, then the
shares of Common Stock and/or Preferred Stock being Transferred which would
cause the Corporation to be "closely held" within the meaning of Section 856(h)
of the Code or any successor statute (rounded up to the nearest whole share)
shall constitute Excess Stock and be treated as provided in this Article VII.
Such designation and treatment shall be effective as of the close of business on
the business day prior to the date of the purported Transfer or change in
capital structure (except for a change resulting from the exchange of Debt for
Equity Stock).
(iii) The Ownership Limit shall not apply to the acquisition of
shares of Common Stock or Preferred Stock by an underwriter in a public offering
of such shares or in any transaction involving the issuance of shares of capital
stock by the Corporation in which the Board of Directors determines that the
underwriter or another person initially acquiring such shares will timely
distribute such shares to others such that following such distribution none of
such shares will be Excess Stock.
Section 4. PREVENTION OF TRANSFER. If the Board of Directors or its
designee shall at any time determine in good faith that a Transfer has taken
place in violation of Section 2 of this Article VII or that a Person intends to
acquire or has attempted to acquire Beneficial Ownership of any shares of stock
of the Corporation in violation of Section 2 of this Article VII, the Board of
Directors or its designee shall taken such action as it deems advisable to
refuse to give effect to or to prevent such Transfer, including, but not limited
to, refusing to give effect to such Transfer on the books of the Corporation,
directing the Corporation's transfer agent and/or registrar to refuse to give
effect to such Transfer on the books of the Corporation or instituting
proceedings to enjoin such transfer; provided, however, that any Transfers or
attempted Transfers in violation of subparagraphs Section 2(ii) and (iv) of this
Article VII shall automatically result in the designation and treatment
described in Section 3 irrespective of any action (or non-action) by the Board
of Directors or its designee.
Section 5. NOTICE TO CORPORATION. Any Person who acquires or attempts
to acquire shares in violation of Section 2 of this Article VII, or any Person
who is a transferee such that Excess Stock results under Section 3 of this
Article VII, shall immediately give written notice or, in the event of a
proposed or attempted Transfer, give at least 15 days prior written notice to
the Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or attempted Transfer on the Corporation's status as a
REIT.
Section 6. INFORMATION FOR CORPORATION. Prior to the Restriction
Termination Date:
(i) every Beneficial Owner of more than 5.0% (or such other
percentage, between 1/2 of 1% and 5%, as provided in the regulations of the
Internal Revenue Service promulgated under the Code) of the number or value of
outstanding shares of Equity Stock of the
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Corporation shall, within 30 days after January 1 of each year, give written
notice to the Corporation stating the name and address of such Beneficial Owner,
the number of shares Beneficially Owned, and a description of how such shares
are held. Each such Beneficial Owner shall provide to the Corporation such
additional information as the Corporation may reasonably request in order to
determine the effect, if any, of such Beneficial Ownership on the Corporation's
status as a REIT.
(ii) each Person who is a Beneficial Owner of Common Stock
and/or Preferred Stock and each Person (including the stockholder of record) who
is holding Common Stock and/or Preferred Stock for a Beneficial Owner shall
provide to the Corporation such information that the Corporation may reasonably
request in order to determine the Corporation's status as a REIT, to comply with
the requirements of any taxing authority or governmental agency or to determine
any such compliance.
Section 7. OTHER ACTION BY BOARD. Nothing contained in this Article
VII shall limit the authority of the Board of Directors to take such other
action as it deems necessary or advisable to protect the Corporation and the
interests of its stockholders by preservation of the Corporation's status as a
REIT.
Section 8. AMBIGUITIES. In the case of an ambiguity in the application
of any of the provisions of this Article VII, including any definition contained
in Section 1, the Board of Directors shall have the power to determine the
application of the provisions of this Article VII with respect to any situation
based on the facts known to it.
Section 9. INCREASE IN OWNERSHIP LIMIT. Subject to the limitations
provided in Section 10 of this Article VII, the Board of Directors may from time
to time increase the Ownership Limit.
Section 10. LIMITATIONS ON CHANGES IN OWNERSHIP LIMIT. (i) The
Ownership Limit may not be increased if, after giving effect to such increase,
five Beneficial Owners of Common Stock could Beneficially Own, in the aggregate,
more than 50% in number or value of the outstanding shares of Equity Stock.
(ii) Prior to the modification of the Ownership Limit pursuant
to Section 9 of this Article VII, the Board of Directors of the Corporation
shall require such opinions of counsel, affidavits, undertakings or agreements
as it may deem necessary to advisable in order to ensure the Corporation's
status as a REIT will not be affected.
Section 11. EXEMPTIONS BY BOARD. The Board of Directors, upon receipt
of a ruling from the Internal Revenue Service or an opinion of counsel or other
evidence satisfactory to the Board of Directors and upon at least 15 days
written notice from a Transferee prior to a proposed Transfer which, if
consummated, would result in the intended Transferee owning shares in excess of
Ownership Limit and upon such other conditions as the Board of Directors may
direct, may exempt a Person from the Ownership Limit.
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Section 12. LEGEND. Each certificate for shares of Common Stock and for
shares of Preferred Stock shall bear substantially the following legend:
The securities represented by this certificate are subject to restrictions
on transfer for the purpose of the Corporation's maintenance of its status
as a real estate investment trust under the Internal Revenue Code of 1986,
as amended. Except as otherwise provided pursuant to the Articles of
Incorporation of the Corporation, no Person may Beneficially Own shares of
Common Stock and/or Preferred Stock in excess of 9.8% (or such greater
percentage as may be determined by the Board of Directors of the
Corporation) of the number or value of the outstanding Equity Stock of the
Corporation. Any Person who attempts or proposes to Beneficially Own
shares of Common Stock and/or Preferred Stock in excess of the above
limitation must notify the Corporation in writing at least 15 days prior to
such proposed or attempted transfer. All capitalized terms in this legend
have the meanings defined in the Articles of Incorporation of the
Corporation, a copy of which, including the restrictions on transfer, will
be sent without charge to each stockholder who so requests. If the
restrictions on transfer are violated, the securities represented hereby
will be designated and treated as shares of Excess Stock which will be held
in trust by the Corporation.
Section 13. SEVERABILITY. If any provision of this Article VII or any
application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity and
enforceability of the remaining provisions shall not be affected and other
applications of such provision shall be affected only to the extent necessary to
comply with the determination of such court.
Section 14. TRUST FOR EXCESS STOCK. Upon any purported Transfer that
results in Excess Stock pursuant to Section 3 of this Article VII, such Excess
Stock shall be deemed to have been transferred to the Corporation, as Trustee of
a Trust for the benefit of such Beneficiary or Beneficiaries to whom an interest
in such Excess Stock may later be transferred pursuant to Section 18 of this
Article VII. Shares of Excess Stock so held in trust shall be issued and
outstanding stock of the Corporation. The Purported Record Transferee shall
have no rights in such Excess Stock except the right to designate a transferee
of such Excess Stock upon the terms specified in Section 18 of this Article VII.
The Purported Beneficial Transferee shall have no rights in such Excess Stock
except as provided in Section 18 of this Article VII.
Section 15. NO DIVIDENDS OR DISTRIBUTIONS FOR EXCESS STOCK. Excess
Stock shall not be entitled to any distributions or dividends. Any dividend or
distribution paid prior to the discovery by the Corporation that the shares of
Common Stock and/or Preferred Stock have been Transferred so as to be deemed
Excess Stock shall be repaid to the Corporation upon demand.
Section 16. LIQUIDATION DISTRIBUTIONS FOR EXCESS STOCK. Subject to the
preferential rights of the Preferred Stock, if any, as may be determined by the
Board of Directors of the Corporation, in the event of any voluntary or
involuntary liquidation, dissolution or winding up
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of, or any other distribution of all or substantially all of the assets of, the
Corporation, each holder of shares of Excess Stock shall be entitled to receive,
in the case of Excess Stock constituting Preferred Stock, ratably with each
other holder of Preferred Stock and Excess Stock constituting Preferred Stock
and, in the case of Excess Stock constituting Common Stock, ratably with each
other holder of Common Stock and Excess Stock constituting Common Stock, that
portion of the assets of the Corporation available for distribution to its
stockholders as the number of shares of the Excess Stock held by such holder
bears to the total number of shares of (i) Preferred Stock and Excess Stock then
outstanding in the case of Excess Stock constituting Preferred Stock and (ii)
Common Stock and Excess Stock then outstanding in the case of Excess Stock
constituting Common Stock. The Corporation, as holder of the Excess Stock in
trust, or if the Corporation shall have been dissolved, any trustee appointed by
the Corporation prior to its dissolution, shall distribute ratably to the
Beneficiaries of the Trust, when determined, any such assets received in respect
of the Excess Stock in any liquidation, dissolution or winding up of, or any
distribution of the assets of the Corporation.
Section 17. VOTING RIGHTS FOR EXCESS STOCK. The holders of shares of
Excess Stock shall not be entitled to vote on any matter.
Section 18. NON-TRANSFERABILITY OF EXCESS STOCK. Excess Stock shall not
be transferable. The Purported Record Transferee may freely designate a
Beneficiary of an interest in the Trust (representing the number of shares of
Excess Stock held by the Trust attributable to a purported Transfer that
resulted in the Excess Stock), if (i) the shares of Excess Stock held in the
Trust would not be Excess Stock in the hands of such Beneficiary and (ii) the
Purported Beneficial Transferee does not receive a price for designating such
Beneficiary that reflects a price per share for such Excess Stock that exceeds
(x) the price per share such Purported Beneficial Transferee paid for the Common
Stock and/or Preferred Stock, as the case may be, in the purported Transfer that
resulted in the Excess Stock, or (y) if the Purported Beneficial Transferee did
not give value for such Excess Stock (through a gift, devise or other
transaction), a price per share equal to the Market Price for the shares of the
Excess Stock on the date of the purported Transfer that resulted in the Excess
Stock. Upon such transfer of an interest in the Trust, the corresponding shares
of Excess Stock in the Trust shall be automatically exchanged for an equal
number of shares of Common Stock and/or Preferred Stock, as applicable, and such
shares of Common Stock and/or Preferred Stock, as applicable, shall be
transferred of record to the transferee of the interest in the Trust if such
shares of Common Stock and/or Preferred Stock, as applicable, would not be
Excess Stock in the hands of such transferee. Prior to any transfer of any
interest in the Trust, the Purported Record Transferee must give advance notice
to the Corporation of the intended transfer and the Corporation must have waived
in writing its purchase rights under Section 20 of this Article VII.
Notwithstanding the foregoing, if a Purported Beneficial Transferee
receives a price for designating a Beneficiary of an interest in the Trust that
exceeds the amounts allowable under this Section 19 of this Article VII, such
Purported Beneficial Transferee shall pay, or cause such Beneficiary to pay such
excess to the Corporation.
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If any of the foregoing restrictions on transfer of Excess Stock are
determined to be void, invalid or unenforceable by any court of competent
jurisdiction, then the Purported Record Transferee may be deemed, at the option
of the Company, to have acted as an agent of the Company in acquiring such
Excess Stock and to hold such Excess Stock on behalf of the Company.
Section 19. CALL BY CORPORATION ON EXCESS STOCK. Shares of Excess Stock
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price per share equal to the lesser of (i) the price per share in
the transaction that created such Excess Stock (or, in the case of a devise or
gift, the Market Price at the time of such devise or gift) and (ii) the Market
Price of the Common Stock or Preferred Stock to which such Excess Stock relates
on the date the Corporation, or its designee, accepts such offer. The
Corporation shall have the right to accept such offer for a period of ninety
days after the later of (i) the date of the Transfer which resulted in such
Excess Stock and (ii) the date the Board of Directors determines in good faith
that a Transfer resulting in Excess Stock has occurred, if the Corporation does
not receive a notice of such Transfer pursuant to Section 5 of this Article VII
but in no event later than a permitted Transfer pursuant to and in compliance
with the terms of Section 18 of this Article VII.
Section 20. INVALIDITY. If any provision of this Article VII or any
application of such provision is determined to be invalid by any federal or
state court having jurisdiction over the issue, the validity of the remaining
provisions shall not be affected except only to the extent necessary to comply
with the determination of such court.
ARTICLE VIII
AMENDMENTS
The Corporation reserves the right from time to time to make any amendment
to these Articles of Incorporation, now or hereafter authorized by law,
including any amendment altering the terms or contract rights, as expressly set
forth in these Articles of Incorporation, of any shares of outstanding stock.
Any amendment to these Articles of Incorporation shall be valid only if such
amendment shall have been approved by the affirmative vote of two-thirds of all
the votes entitled to be cast on the matter except to the extent Maryland law
requires a higher vote. All rights and powers conferred by these Articles of
Incorporation on stockholders, directors and officers are granted subject to
this reservation.
ARTICLE IX
LIMITATION OF LIABILITY
To the maximum extent that Maryland law in effect from time to time permits
limitation of the liability of directors and officers, no director or officer of
the Corporation shall be liable to the Corporation or its stockholders for money
damages. Neither the amendment nor repeal of this Article IX, nor the adoption
or amendment of any other provision of these Articles of Incorporation or Bylaws
of the Corporation inconsistent with this Article IX, shall apply to or
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affect in any respect the applicability of the preceding sentence with respect
to any act or failure to act which occurred prior to such amendment, repeal or
adoption.
ARTICLE X
NOMINATION AND BUSINESS PROCEDURES
At a meeting of the stockholders, no business shall be conducted which has
not been properly brought before the meeting. To be properly brought before a
meeting, business must be brought before the meeting by or at the direction of
the Board of Directors or brought before the meeting by a stockholder. For
business to be properly brought before a meeting by a stockholder, the Secretary
of the Corporation must have received written notice not less than sixty (60)
days nor more than ninety (90) days prior to the meeting; provided, however,
that in the event that less than seventy (70) days' notice or prior public
disclosure is given or made to stockholders, notice by the stockholder to be
timely must be received no later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the meeting was mailed
or the public disclosure was made. In the case of stockholder nominations for
election to the Board of Directors, the notice shall set forth (A) the name,
age, business address and, if known, residence address of each nominee proposed
in such notice, (B) the Principal occupations or employment of each such nominee
for the Past five (5) years, (C) the number of shares of the Corporation which
are beneficially owned by each such nominee, (D) other directorships held by
each such nominee, (E) the names of business entities of which each such nominee
owns a ten Percent (10%) or more beneficial interest, and (F) all other
information with respect to the nominees required by the Federal proxy rules in
effect at the time the notice is submitted. In addition, the notice shall be
accompanied by a statement, over the signature of each proposed nominee, that he
consents to being a nominee, if elected he intends to serve as a director, and
confirming the information with respect to him set forth in the notice. In the
case of stockholder proposals other than the election of directors, the notice
shall set forth (A) a brief description of the business to be brought before the
meeting, (B) the name, age, business and residence address of the stockholder
submitting the Proposal, (C) the principal occupation or employment of that
stockholder, (D) the number of shares of the Corporation which are beneficially
owned by the stockholder, and (E) any material interest of the stockholder in
the business to be brought before the meeting. The Chairman of the meeting may,
if the facts warrant, determine and declare to the meeting that a stockholder
nomination or proposal was not made in accordance with the foregoing procedure
and the defective nomination or Proposal shall be disregarded and the inspectors
of election shall not count any votes cast in favor thereof. Notwithstanding
anything in these Articles of Incorporation or the by-Laws of this Corporation
to the contrary, no elections or other business shall be conducted at any
meeting of the stockholders except in accordance with the procedures set forth
in this ARTICLE.
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<PAGE>
IN WITNESS WHEREOF, I have signed these Articles of Incorporation and have
acknowledged the same to be my act and deed this on this 12th day of August,
1993.
/s/ Bruce P. Golden
------------------------
Bruce P. Golden
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<PAGE>
ARTICLES OF INCORPORATION OF
MIDCONTINENT REIT, INC.
APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND AUGUST 16, 1993 AT 1:32 O'CLOCK P.M. AS IN CONFORMITY WITH
LAW AND ORDERED RECORDED.
----------------------------
ORGANIZATION AND RECORDING SPECIAL
CAPITALIZATION FEE PAID FEE PAID FEE PAID
$20.00 $20.00
----------------------------
D3714797
IT IS HEREBY CERTIFIED, THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL
INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.
THE PRENTICE-HALL CORPORATION
SYSTEM, MARYLAND
11 E. CHASE ST.
BALTIMORE, MD 21202
037C-07559B
A 4 3 0 6 61
RECORDED IN THE RECORDS OF THE
STATE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF MARYLAND IN LIBER, FOLIO
<PAGE>
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
MIDCONTINENT REIT, INC.
9/29/93 10:35
THIS IS TO CERTIFY THAT:
FIRST: MidContinent REIT, Inc., a Maryland corporation (the
"Corporation"), desires to amend and restate its Articles of Incorporation as
currently in effect and as hereinafter amended.
SECOND: The following provisions are all the provisions of the Articles of
Incorporation currently in effect and as hereinafter amended:
ARTICLE I
INCORPORATOR
The undersigned, Bruce P. Golden, whose address is Three First National
Plaza, Suite 3500, Chicago, Illinois 60602, Chicago, Illinois, being at least 18
years of age, does hereby form a corporation under the general laws of the State
of Maryland.
ARTICLE II
NAME
The name of the Corporation is:
CenterPoint Properties Corporation
ARTICLE III
PURPOSE OF CORPORATION
The purpose for which the Corporation is formed and the business or objects
to be carried on and promoted by it, within the State of Maryland or elsewhere,
is to engage in any lawful act or activity for which corporations may be formed
under the Maryland General Corporation Law, as now or hereafter in force, to do
everything necessary, proper, advisable and convenient to accomplish the
purposes herein set forth, and to do all other things incidental thereto or
connected therewith which are not forbidden by the laws of the State of Maryland
as now or hereafter in force or by these Articles of Incorporation.
<PAGE>
Without limiting the generality of the foregoing, the Corporation may
engage in business as a real estate investment trust under the Internal Revenue
Code of 1986, as amended, or any successor statute (the "Code"). For purposes of
these Articles of Incorporation, "REIT" shall mean a real estate investment
trust as described in the Code.
ARTICLE IV
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The post office address of the principal office of the Corporation in the
State of Maryland is c/o Prentice-Hall, Inc., 11 East Chase St., Baltimore,
Maryland 21201. The name of the resident agent of the Corporation in the State
of Maryland is Prentice-Hall, Inc., 11 East St., Baltimore, Maryland 21202. The
resident agent is a corporation in the State of Maryland.
ARTICLE V
CAPITAL STOCK
Section 1. AUTHORIZED SHARES. The total number of shares of stock
which the Corporation has authority to issue is 60,000,000 shares, of which
50,000,000 are shares of Common Stock, par value $.001 per share ("Common
Stock"), and 10,000,000 shares are shares of Series Preferred Stock, par value
$.001 per share ("Preferred Stock"). The aggregate par value of all authorized
shares of stock having par value is $60,000.00
Section 2. VOTING RIGHTS. Subject to the provisions of Article VII
regarding Excess Stock (as such term is deemed therein), each share of Common
Stock shall entitle the holder thereof to one vote.
Section 3. ISSUANCE OF PREFERRED STOCK. The Preferred Stock may be
issued, from time to time, in one or more series as authorized by the Board of
Directors. Prior to issuance of shares of each series of Preferred Stock, the
Board of Directors by resolution shall designate that series to distinguish it
from all other series of Preferred Stock and classes of capital stock of the
Corporation, shall specify the number of shares to be included in that series of
Preferred Stock and, subject to the provisions of Article VII regarding Excess
Stock, shall set the terms, preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications and terms or conditions of redemption. Subject to the express
terms of any other series of Preferred Stock outstanding at the time and
notwithstanding any other provision of these Articles of Incorporation, the
Board of Directors may increase or decrease the number of shares of any series
of Preferred Stock by setting or changing, in any one or more respects, from
time to time before issuing the shares, and, subject to the provisions of
Article VII regarding Excess Stock, the terms, preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the shares
of any series of Preferred Stock.
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<PAGE>
Section 4. ARTICLES OF INCORPORATION AND BYLAWS. All persons who shall
acquire stock in the Corporation at any time and from time to time shall acquire
the same subject to the provisions of these Articles of Incorporation and the
Bylaws of the Corporation.
ARTICLE VI
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 1. NUMBER AND CERTIFICATION. The number of directors of the
Corporation initially shall be three, which number may be increased or decreased
pursuant to the Bylaws of the Corporation; provided, however, that (a) if there
is stock outstanding and so long as there are three or more stockholders, the
number of directors shall never be less than three and (b) if there is stock
outstanding and so long as there are less than three stockholders, the number of
directors may be less than three but not less than the number of stockholders.
The names of the directors who shall serve effective immediately and until the
first annual meeting of stockholders and until their successors are duly elected
and shall qualify are:
Martin Barber
John S. Gates, Jr.
Robert L. Stovall
At the first annual meeting of stockholders, and at each annual meeting
thereafter, the stockholders shall elect the directors who shall serve until
their successors are duly elected and shall qualify.
Section 2. REMOVAL. A director may be removed, with or without cause,
by the stockholders upon the affirmative vote of a majority of all of the votes
entitled to be cast for the election of directors. A director may be removed,
with or without cause, by the Board of Directors upon the affirmative vote of a
majority of the then acting directors. A special meeting of the stockholders or
the Board of Directors may be called, in accordance with the Bylaws of the
Corporation, for the purpose of removing a director.
Section 3. AUTHORIZATION BY BOARD OF CAPITAL STOCK ISSUANCE. The Board
of Directors of the Corporation may authorize the issuance from time to time of
shares of its stock of any class, whether now or hereafter authorized, or
securities convertible into shares of its stock of any class, whether now or
hereafter authorized, for such consideration as the Board of Directors in its
sole discretion may deem advisable, subject to such restrictions or limitations,
if any, as may be set forth in these Articles of Incorporation or the Bylaws of
the Corporation or in the general laws of the State of Maryland.
Section 4. PREEMPTIVE RIGHTS. Except as may be provided by the Board
of Directors in authorizing the issuance of shares of Preferred Stock pursuant
to Article V, Section 3, no holder of shares of stock of the Corporation shall,
as such holder, have any preemptive right to
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purchase or subscribe for any additional shares of the stock of the Corporation
or any other security of the Corporation which it may issue or sell.
Section 5. INDEMNIFICATION. The Corporation shall have the power, to
the maximum extent permitted by Maryland law in effect from time to time, to
obligate itself to indemnify, and to pay or reimburse expenses under the
procedure provided by such Maryland law in advance of final disposition of a
proceeding to, (i) any individual who is a present or former director or officer
of the Corporation or (ii) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
The Corporation shall have the power, with the approval of its Board of
Directors, to provide such indemnification and advancement of expenses to a
person who served a predecessor of the Corporation in any of the capacities
described in (i) or (ii) above and to any employee or agent of the Corporation
or a predecessor of the Corporation.
Section 6. ADVISOR AGREEMENTS. Subject to such approval of
stockholders and other conditions, if any, as may be required by any applicable
statute, rule or regulation, the Board of Directors may authorize the execution
and performance by the Corporation of one or more agreements with any person,
corporation, association, company, trust, partnership (limited or general) or
other organization whereby, subject to the supervision and control of the Board
of Directors, any such other person, corporation, association, company, trust,
partnership (limited or general) or other organization (the "Advisor") shall
render or make available to the Corporation managerial, investment, advisory
and/or related services, office space and other services and facilities
(including, if deemed advisable by the Board of Directors, the management or
supervision of the investments of the Corporation) upon such terms and
conditions as may be provided in such agreement or agreements (including, if
deemed fair and equitable by the Board of Directors, the compensation payable
thereunder by the Corporation).
Section 7. RELATED PARTY TRANSACTIONS. Without limiting any other
procedures available by law or otherwise to the Corporation, the Board of
Directors may authorize any agreement of the character described in Section 6 of
this Article VI or other transaction with any person, corporation, association,
company, trust, partnership (limited or general) or other organization, although
one or more of the directors or officers of the Corporation may be a party to
any such agreement or an officer, director, stockholder or member of such other
party, and no such agreement or transaction shall be invalidated or rendered
void or voidable solely by reason of the existence of any such relationship if
the existence is disclosed or known to the Board of Directors, and the contract
or transaction is approved by the affirmative vote of a majority of the
disinterested directors, even if they constitute less than a quorum of the
Board. Any director of the Corporation who is also a director, officer,
stockholder or member of such other entity may be counted in determining the
existence of a quorum at any meeting of the Board of Directors considering such
matter.
Section 8. DETERMINATION BY BOARD. The determination as to any of the
following matters, made in good faith by or pursuant to the direction of the
Board of Directors consistent
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<PAGE>
with these Articles of Incorporation and in the absence of actual receipt of an
improper benefit in money, property or services or active and deliberate
dishonesty established by a court, shall be final and conclusive and shall be
binding upon the Corporation and every holder of shares of its stock: the amount
of the net income of the Corporation for any period and the amount of assets at
any time legally available for the payment of dividends, redemption of its stock
or the payment of other distributions on its stock; the amount of paid-in
surplus, net assets, other surplus, annual or other net profit, net assets in
excess of capital, undivided profits or excess of profits over losses on sales
of assets; the amount, purpose, time of creation, increase or decrease,
alteration or cancellation of any reserves or charges and the propriety thereof
(whether or not any obligation or liability for which such reserves or charges
shall have been created shall have been paid or discharged); the fair value, or
any sale, bid or asked price to be applied in determining the fair value, of any
asset owned or held by the Corporation, and any matters relating to the
acquisition, holding and disposition of any assets by the Corporation.
Section 9. RESERVED POWERS OF BOARD. The enumeration and definition of
particular powers of the Board of Directors included in this Article VI shall in
no way be limited or restricted by reference to or inference from the terms of
any other clause of this or any other provision of these Articles of
Incorporation, or construed or deemed by inference or otherwise in any manner to
exclude or limit the powers conferred upon the Board of Directors under the
general laws of the State of Maryland as now or hereafter in force.
ARTICLE VII
RESTRICTION ON TRANSFER
ACQUISITION AND REDEMPTION OF SHARES
Section 1. DEFINITIONS. For the purpose of this Article VII, the
following terms shall have the following meanings:
"Act" means the Securities Act of 1933, as amended.
"Beneficial Ownership" shall mean ownership of Equity Stock (as
hereinafter defined) by a Person (as hereinafter defined) who would be treated
as an owner of such Equity Stock under Section 542(a)(2) of the Code either
directly or constructively through the application of Section 544 of the Code,
as modified by Section 856(h)(1)(B) of the Code but without regard to Section
856(h)(3) of the Code. The terms "Beneficial Owner, "Beneficially Owns,"
"Beneficially Own" and "Beneficially Owned" shall have the correlative meanings.
"Beneficiary" shall mean the beneficiary of the Trust (as hereinafter
defined) as determined pursuant to Section 19 of this Article VII.
"Debt" shall mean indebtedness of (i) the Corporation or (ii) any
subsidiary thereof.
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<PAGE>
"Equity Stock" shall mean capital stock that is either Common Stock or
Preferred Stock.
"Existing Holder" shall mean Capital and Regional Properties plc, a
United Kingdom corporation.
"Existing Holder Limit" shall initially mean 18.0%, in number of
shares or value, of the outstanding Equity Stock of the corporation, and after
any adjustment as set forth in Section 10 of this Article VII, shall mean such
greater percentage of the outstanding Equity Stock as so adjusted. The number
and value of shares of the outstanding Equity Stock of the Corporation shall be
determined by the Board of Directors in good faith, which determination shall be
conclusive for all purposes hereof.
"Initial Public Offering Date" shall mean the date of the first sale
of shares of Common Stock pursuant to the Corporation's first effective
registration statement for such shares of Common Stock filed pursuant to the
Act.
"Market Price" shall mean the last reported sales price of Common
Stock or Preferred Stock, as the case may be, reported on any nationally
registered securities exchange on the trading day immediately preceding the
relevant date, or if not then traded on any such exchange, the last reported
sales price of the Common Stock or Preferred Stock, as the case may be, on the
trading day immediately preceding the relevant date as reported on any exchange
or quotation system over which the Common Stock or Preferred Stock, as the case
may be, may be traded, or if not then traded over any exchange or quotation
system, then the market price of the Common Stock or Preferred Stock, as the
case may be, on the relevant date as determined in good faith by the Board of
Directors of the Corporation.
"Ownership Limit" shall initially mean 9.8%, in number of shares or
value, of the outstanding Equity Stock of the corporation, and after any
adjustment as set forth in Section 10 of this Article VII, shall mean such
greater percentage of the outstanding Equity Stock as so adjusted. The number
and value of shares of the outstanding Equity Stock of the Corporation shall be
determined by the Board of Directors in good faith, which determination shall be
conclusive for all purposes hereof.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a)) or 501(c)(17) of the
Code), a portion of a trust permanently set aside for or to be used exclusively
for the purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code or any successor
statute, joint stock company or other entity; but does not include an
underwriter which participated in the initial public offering of the Common
Stock on the Initial Public Offering Date and/or in any subsequent public
offering registered under the Act of any capital stock of the Corporation for a
period of 30 days following the purchase by such underwriter of the Common Stock
and/or capital stock.
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<PAGE>
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer which results in Excess Stock (as defined in Section 3 of
this Article VII), the purported beneficial transferee for whom the Purported
Record Transferee (as hereinafter defined) would have acquired shares of Equity
Stock, if such transfer had been valid under Section 2 of this Article VII.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Stock, the record Holder of the
Equity Stock if such transfer had been valid under Section 2 of this Article
VII.
"Restriction Termination Date" shall mean the first day on which the
Board of Directors of the Corporation determines that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of Equity Stock (including (i) the granting of any option or
entering into any agreement for the sale, transfer or other disposition of
Equity Stock or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Equity Stock, but
excluding the exchange of Debt for Equity Stock), whether by operation of law or
otherwise. The terms "Transfers" and "Transferred" shall have the correlative
meanings.
"Trust" shall mean the trust created pursuant to Section 15 of this
Article VII.
"Trustee" shall mean the Corporation as trustee for the Trust, and any
successor trustee appointed by the Corporation.
Section 2. OWNERSHIP LIMITATION. (i) Except as provided in Section 12
of this Article VII, from the Initial Public Offering Date until the
Restriction Termination Date, no Person (other than an Existing Holder) shall
Beneficially Own shares of Common Stock and/or Preferred Stock in excess of the
Ownership Limit and no Existing Holder shall Beneficially Own shares of Common
Stock and/or Preferred Stock in excess of the Existing Holder Limit for such
Existing Holder.
(ii) Except as provided in Sections 9 and 12 of this Article
VII, from the Initial Public Offering Date until the Restriction Termination
Date, any Transfer that, if effective, would result in any Person (other than an
Existing Holder) Beneficially Owning Common Stock and/or Preferred Stock in
excess of the Ownership Limit shall be void AB INITIO as to the Transfer of such
shares of Common Stock and/or Preferred Stock which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit; and the
intended transferee shall acquire no rights in such shares of Common Stock
and/or Preferred Stock.
(iii) Except as provided in Sections 9 and 12 of this Article
VII, from the Initial Public Offering Date until the Restriction Termination
Date, any Transfer that, if effective, would result in any Existing Holder
Beneficially Owning Common Stock and/or Preferred Stock in excess of the
Existing Holder Limit shall be void AB INITIO as to the Transfer of such shares
of
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Common Stock and/or Preferred Stock which would be otherwise Beneficially
Owned by such Existing Holder in excess of the Existing Holder Limit; and
such Existing Holder shall acquire no rights in such shares of Common Stock
and/or Preferred Stock.
(iv) Except as provided in Section 12 of this Article VII, from
the Initial Public Offering Date until the Restriction Termination Date, any
Transfer that, if effective, would result in the Common Stock and/or Preferred
Stock being Beneficially Owned by less than 100 Persons (determined without
reference to any rules of attribution) shall be void AB INITIO as to the
Transfer of such shares of Common Stock and/or Preferred Stock which would be
otherwise Beneficially Owned by the transferee; and the intended transferee
shall acquire no rights in such shares of Common Stock and/or Preferred Stock.
(v) From the Initial Public Offering Date until the Restriction
Termination Date, any Transfer that, if effective, would result in the
Corporation being "closely held" within the meaning of Section 856(h) of the
Code shall be void AB INITIO as to the Transfer of the shares of Common Stock
and/or Preferred Stock which would cause the Corporation to be "closely held"
within the meaning of Section 856(h) of the Code or any successor statute; and
the intended transferee shall acquire no rights in such shares of Common Stock
and/or Preferred Stock.
Section 3. EXCESS STOCK. (i) If, notwithstanding the other provisions
contained in this Article VII, at any time from the Initial Public Offering Date
until the Restriction Termination Date, there is a purported Transfer or other
change in the capital structure of the Corporation such that any Person would
Beneficially Own Common Stock and/or Preferred Stock in excess of the Ownership
Limit or that the Existing Holder would Beneficially Own Common Stock and/or
Preferred Stock in excess of the Existing Holder Limit, then, except as
otherwise provided in Sections 9 and 12, such shares of Common Stock and/or
Preferred Stock in excess of such Ownership Limit or Existing Holder Limit
(rounded up to the nearest whole share) shall constitute "Excess Stock" and be
treated as provided in this Article VII. Such designation and treatment shall
be effective as of the close of business on the business day prior to the date
of the purported Transfer or change in capital structure.
(ii) If, notwithstanding the other provisions contained in this
Article VII, at any time from the Initial Public Offering Date until the
Restriction Termination Date, there is a purported Transfer or other change in
the capital structure of the Corporation (except for a change resulting from the
exchange of Debt for Equity Stock) which, if effective, would cause the
corporation to become "closely held" within the meaning of Section 856(h) of the
Code or any successor statute, then the shares of Common Stock and/or Preferred
Stock being Transferred which would cause the Corporation to be "closely held"
within the meaning of Section 856(h) of the Code or any successor statute
(rounded up to the nearest whole share) shall constitute Excess Stock and be
treated as provided in this Article VII. Such designation and treatment shall
be effective as of the close of business on the business day prior to the date
of the purported Transfer or change in capital structure.
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(iii) The Ownership Limit shall not apply to the acquisition of
shares of Common Stock or Preferred Stock by an underwriter on the Initial
Public Offering Date or in a public offering of such shares or in any
transaction involving the issuance of shares of capital stock by the Corporation
in which the Board of Directors determines that the underwriter or another
person initially acquiring such shares will timely distribute such shares to
others such that the following such distribution none of such shares will be
Excess Stock.
Section 4. PREVENTION OF TRANSFER. If the Board of Directors or its
designee shall at any time determine in good faith that a Transfer has taken
place in violation of Section 2 of this Article VII or that a Person intends to
acquire or has attempted to acquire Beneficial Ownership of any shares of stock
of the Corporation in violation of Section 2 of this Article VII, the Board of
Directors or its designee shall take such action as it deems advisable to refuse
to give effect to or to prevent such Transfer, including, but not limited to,
refusing to give effect to such Transfer on the books of the Corporation,
directing the Corporation's transfer agent and/or registrar to refuse to give
effect to such Transfer on the books of the Corporation or instituting
proceedings to enjoin such Transfer; provided, however, that any Transfers or
attempted Transfers in violation of subparagraphs Section 2(ii), (iii) and (iv)
of this Article VII shall automatically result in the designation and treatment
described in Section 3 irrespective of any action (or non-action) by the Board
of Directors or its designee.
Section 5. NOTICE TO CORPORATION. Any Person who acquires or attempts
to acquire shares in violation of Section 2 of this Article VII, or any Person
who is a transferee such that Excess Stock results under Section 3 of this
Article VII, shall immediately give written notice or, in the event of a
proposed or attempted Transfer, give at least 15 days prior written notice to
the Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or attempted Transfer on the Corporation's status as a
REIT.
Section 6. INFORMATION FOR CORPORATION. From the Initial Public
Offering Date until the Restriction Termination Date:
(i) every Beneficial Owner of more than 5.0% (or such other
percentage, between 1/2 of 1% and 5%, as provided in the regulations of the
Internal Revenue Service promulgated under the Code) of the number or value of
outstanding shares of Equity Stock of the Corporation shall, within 30 days
after January 1 of each year, give written notice to the Corporation stating the
name and address of such Beneficial Owner, the number of shares Beneficially
Owned, and a description of how such shares are held. Each such Beneficial
Owner shall provide to the Corporation such additional information as the
Corporation may reasonably request in order to determine the effect, if any, of
such Beneficial Ownership on the Corporation's status as a REIT.
(ii) each Person who is a Beneficial Owner of Common Stock and/or
Preferred Stock and each Person (including the stockholder of record) who is
holding Common Stock and/or Preferred Stock for a Beneficial Owner shall provide
to the Corporation such information as the Corporation may reasonably request in
order to determine the Corporation's
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status as a REIT, to comply with the requirements of any taxing authority or
governmental agency or to determine any such compliance.
Section 7. OTHER ACTION BY BOARD. Nothing contained in this Article
VII shall limit the authority of the Board of Directors to take such other
action as it deems necessary or advisable to protect the Corporation and the
interests of its stockholders by preservation of the Corporation's status as a
REIT.
Section 8. AMBIGUITIES. In the case of an ambiguity in the application
of any of the provisions of this Article VII, including any definition contained
in Section 1, the Board of Directors shall have the power to determine the
application of the provisions of this Article VII with respect to any situation
based on the facts known to it.
Section 9. MODIFICATION OF EXISTING HOLDER LIMITS. Subject to the
limitations provided in Section 11 of this Article VII, an Existing Holder may
elect to participate in a dividend reinvestment plan approved by the Board of
Directors of the Corporation which results in Beneficial Ownership of Common
Stock and/or Preferred Stock by such participating Existing Holder. Any such
participation shall increase the Existing Holder Limit for the affected Existing
Holder to the maximum extent possible under Section 11 to permit Beneficial
Ownership of the shares of Common Stock and/or Preferred Stock acquired as a
result of such participation.
Section 10. INCREASE IN OWNERSHIP LIMIT. Subject to the limitations
provided in Section 11 of this Article VII, the Board of Directors may from time
to time increase the Ownership Limit.
Section 11. LIMITATIONS ON CHANGES IN OWNERSHIP LIMIT. (i) Neither the
Ownership Limit nor the Existing Holder Limit may be increased (nor may any
additional Existing Holder Limit be created) if, after giving effect to such
increase (or creation), five Beneficial Owners of Equity Stock (including all of
the then Existing Holders) could Beneficially Own, in the aggregate, more than
50% in number or value of the outstanding shares of Equity Stock.
(ii) Prior to the modification of the Ownership Limit or
Existing Holder Limit pursuant to Sections 9 or 10 of this Article VII, the
Board of Directors of the Corporation shall require such opinions of counsel,
affidavits, undertakings or agreements as it may deem necessary to advisable
in order to ensure the Corporation's status as a REIT will not be affected.
(iii) No Existing Holder Limit shall be reduced to a
percentage which is less than the Ownership Limit.
Section 12. EXEMPTIONS BY BOARD. The Board of Directors, upon receipt
of a ruling from the Internal Revenue Service or an opinion of counsel or other
evidence satisfactory to the Board of Directors and upon at least 15 days
written notice from a Transferee prior to a proposed Transfer which, if
consummated, would result in the intended Transferee owning shares in excess of
Ownership Limit or Existing Holder Limit, as the case may be, and upon such
other
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<PAGE>
conditions as the Board of Directors may direct, may exempt a Person from the
Ownership Limit or the Existing Holder Limit, as the case may be.
Section 13. LEGEND. Each certificate for shares of Common Stock and for
shares of Preferred Stock shall bear substantially the following legend:
The securities represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's
maintenance of its status as a real estate investment trust under the
Internal Revenue Code of 1986, as amended. Except as otherwise
provided pursuant tot he Articles of Incorporation of the Corporation,
no Person may Beneficially Own shares of Common Stock and/or Preferred
Stock in excess of 8% (or such greater percentage as may be determined
by the Board of Directors of the Corporation) of the number or value
of the outstanding Equity Stock of the Corporation (unless such Person
is an Existing Holder). Any Person who attempts or proposes to
Beneficially Own shares of Common Stock and/or Preferred Stock in
excess of the above limitations must notify the Corporation in writing
at least 15 days prior to such proposed or attempted Transfer. All
capitalized terms in this legend have the meanings defined in the
Articles of Incorporation of the Corporation, a copy of which,
including the restrictions on transfer, will be sent without charge to
each stockholder who so requests. If the restrictions on transfer are
violated, the securities represented hereby will be designated and
treated as shares of Excess Stock which will be held in trust by the
Corporation.
Section 14. SEVERABILITY. If any provision of this Article VII or any
application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity and
enforceability of the remaining provisions shall not be affected and other
applications of such provision shall be affected only to the extent necessary to
comply with the determination of such court.
Section 15. TRUST FOR EXCESS STOCK. Upon any purported Transfer that
results in Excess Stock pursuant to Section 3 of this Article VII, such Excess
Stock shall be deemed to have been transferred to the Corporation, as Trustee of
a Trust for the benefit of such Beneficiary or Beneficiaries to whom an interest
in such Excess Stock may later be transferred pursuant to Section 18 of this
Article VII. Shares of Excess Stock so held in trust shall be issued and
outstanding stock of the Corporation. The Purported Record Transferee shall
have no rights in such Excess Stock except the right to designate a transferee
of such Excess Stock upon the terms specified in Section 18 of this Article VII.
The Purported Beneficial Transferee shall have no rights in such Excess Stock
except as provided in Section 18 of this Article VII.
-11-
<PAGE>
Section 16. NO DIVIDENDS OR DISTRIBUTIONS FOR EXCESS STOCK. Excess
Stock shall not be entitled to any distributions or dividends. Any dividend or
distribution paid prior to the discovery by the Corporation that the shares of
Common Stock and/or Preferred Stock have been Transferred so as to be deemed
Excess Stock shall be repaid to the Corporation upon demand.
Section 17. LIQUIDATION DISTRIBUTIONS FOR EXCESS STOCK. Subject to the
preferential rights of the Preferred Stock, if any, as may be determined by the
Board of Directors of the Corporation, in the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any other distribution
of all or substantially all of the assets of, the Corporation, each holder of
shares of Excess Stock shall be entitled to receive, in the case of Excess Stock
constituting Preferred Stock, ratably with each other holder of Preferred Stock
and Excess Stock constituting Preferred Stock and, in the case of Excess Stock
constituting Common Stock, ratably with each other holder of Common Stock and
Excess Stock constituting Common Stock, that portion of the assets of the
Corporation available for distribution to its stockholders as the number of
shares of the Excess Stock held by such holder bears to the total number of
shares of (i) Preferred Stock and Excess Stock then outstanding in the case of
Excess Stock constituting Preferred Stock and (ii) Common Stock and Excess Stock
then outstanding in the case of Excess Stock constituting Common Stock. The
Corporation, as holder of the Excess Stock in trust, or if the Corporation shall
have been dissolved, any trustee appointed by the Corporation prior to its
dissolution, shall distribute ratably to the Beneficiaries of the Trust, when
determined, any such assets received in respect of the Excess Stock in any
liquidation, dissolution or winding up of, or any distribution of the assets of
the Corporation.
Section 18. VOTING RIGHTS FOR EXCESS STOCK. The holders of shares of
Excess Stock shall not be entitled to vote on any matter.
Section 19. NON-TRANSFERABILITY OF EXCESS STOCK. Excess Stock shall not
be transferable. The Purported Record Transferee may freely designate a
Beneficiary of an interest in the Trust (representing the number of shares of
Excess Stock held by the Trust attributable to a purported Transfer that
resulted in the Excess Stock), if (i) the shares of Excess Stock held in the
Trust would not be Excess Stock in the hands of such Beneficiary and (ii) the
Purported Beneficial Transferee does not receive a price for designating such
Beneficiary that reflects a price per share for such Excess Stock that exceeds
(x) the price per share such Purported Beneficial Transferee paid for the Common
Stock and/or Preferred Stock, as the case may be, in the purported Transfer that
resulted in the Excess Stock, or (y) if the Purported Beneficial Transferee did
not give value for such Excess Stock (through a gift, devise or other
transaction), a price per share equal to the Market Price for the shares of the
Excess Stock on the date of the purported Transfer that resulted in the Excess
Stock. Upon such transfer of an interest in the Trust, the corresponding shares
of Excess Stock in the Trust shall be automatically exchanged for an equal
number of shares of Common Stock and/or Preferred Stock, as applicable, and such
shares of Common Stock and/or Preferred Stock, as applicable, shall be
transferred of record to the transferee of the interest in the Trust if such
shares of Common Stock and/or Preferred Stock, as applicable, would not be
Excess Stock in the hands of such transferee. Prior to any transfer of any
interest in the Trust, the Purported Record Transferee must give advance notice
to the
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<PAGE>
Corporation of the intended transfer and the Corporation must have waived in
writing its purchase rights under Section 20 of this Article VII.
Notwithstanding the foregoing, if a Purported Beneficial Transferee
receives a price for designating a Beneficiary of an interest in the Trust that
exceeds the amounts allowable under this Section 19 of this Article VII, such
Purported Beneficial Transferee shall pay, or cause such Beneficiary to pay such
excess to the Corporation.
If any of the foregoing restrictions on transfer of Excess Stock are
determined to be void, invalid or unenforceable by any court of competent
jurisdiction, then the Purported Record Transferee may be deemed, at the option
of the Company, to have acted as an agent of the Company in acquiring such
Excess Stock and to hold such Excess Stock on behalf of the Company.
Section 20. CALL BY CORPORATION ON EXCESS STOCK. Shares of Excess Stock
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price per share equal to the lesser of (i) the price per share in
the transaction that created such Excess Stock, (or, in the case of a devise or
gift, the Market Price at the time of such devise or gift) and (ii) the Market
Price of the Common Stock or Preferred Stock to which such Excess Stock relates
on the date the Corporation, or its designee, accepts such offer. The
Corporation shall have the right to accept such offer for a period of ninety
days after the later of (i) the date of the Transfer which resulted in such
Excess Stock and (ii) the date the Board of Directors determines in good faith
that a Transfer resulting in Excess Stock has occurred, if the Corporation does
not receive a notice of such Transfer pursuant to Section 5 of this Article VII
but in no event later than a permitted Transfer pursuant to and in compliance
with the terms of Section 19 of this Article VII.
Section 21. INVALIDITY. If any provision of this Article VII or any
application of such provision is determined to be invalid by any federal or
state court having jurisdiction over the issue, the validity of the remaining
provisions shall not be affected except only to the extent necessary to comply
with the determination of such court.
Section 22. EFFECTIVENESS OF ARTICLE VI. Notwithstanding anything to
the contrary provided for in these Articles of Incorporation, the provisions of
this ARTICLE VI shall not be effective until the Initial Public Offering Date.
ARTICLE VIII
AMENDMENTS
The Corporation reserves the right from time to time to make any amendment
to these Articles of Incorporation, now or hereafter authorized by law,
including any amendment altering the terms or contract rights, as expressly set
forth in these Articles of Incorporation, of any shares of outstanding stock.
Any amendment to these Articles of Incorporation shall be valid only if such
amendment shall have been approved by the affirmative vote of two-thirds of all
the votes entitled to be case on the matter except to the extent Maryland law
requires a higher vote. All
-13-
<PAGE>
rights and powers conferred by these Articles of Incorporation on stockholders,
directors and officers are granted subject to this reservation.
ARTICLE IX
LIMITATION OF LIABILITY
To the maximum extent that Maryland law in effect from time to time permits
limitation of the liability of directors and officers, no director or officer of
the Corporation shall be liable to the Corporation or its stockholders for money
damages. Neither the amendment nor repeal of this Article IX, nor the adoption
or amendment of any other provision of these Articles of Incorporation or Bylaws
of the Corporation inconsistent with this Article IX, shall apply to or affect
in any respect the applicability of the preceding sentence with respect to any
act or failure to act which occurred prior to such amendment, repeal or
adoption.
ARTICLE X
NOMINATION AND BUSINESS PROCEDURES
Section 1. GENERAL. At a meeting of the stockholders, no business shall
be conducted which has not been properly brought before the meeting as set forth
in this ARTICLE X. To be property brought before a meeting, business must be
brought before the meeting by or at the direction of the Board of Directors or
brought before the meeting by a stockholder. For business to be properly
brought before a meeting by a stockholder, the Secretary of the Corporation must
have received written notice not less than sixty (60) days nor more than ninety
(90) days prior to the date fixed by the Board of Directors for such meeting;
provided, however, that in the event that less than seventy (70) days' notice or
prior public disclosure is given or made to stockholders of the date of such
meeting, notice by a stockholder to be timely made must be received no later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the meeting was mailed or the public disclosure was
made.
Section 2. BOARD OF DIRECTOR NOMINATIONS. In the case of stockholder
nominations for election to the Board of Directors, the notice set forth in
Section 1 of this ARTICLE X shall set forth (i) the name, age, business address
and, if known, residence address of each nominee proposed in such notice, (ii)
the principal occupations or employment of each such nominee for the past five
(5) years, (iii), the number of shares of the Corporation which are beneficially
owned by each such nominee, (iv) other directorships held by each such nominee,
(v) the names of business entities of which each such nominee owns a ten percent
(10%) or more beneficial interest, and (vi) all other information with respect
to the nominees required by the Federal proxy rules in effect at the time the
notice is submitted. In addition, such notice shall be accompanied by a
statement, over the signature of each proposed nominee, that he consents to
being a nominee, if elected he intends to serve as a director, and confirming
the information with respect to him set forth in the notice.
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<PAGE>
Section 3. STOCKHOLDER PROPOSALS. In the case of stockholder proposals or
business other than the election of directors, the notice set forth in Section 1
of this ARTICLE X shall set forth (i) a brief description of the proposal or
business to be brought before the meeting, (ii) the name, age, business and
residence address of the stockholder submitting the proposal or business, (iii)
the principal occupation or employment of that stockholder, (iv) the number of
shares of the Corporation which are beneficially owned by that stockholder, and
(v) any material interest of that stockholder in the proposal or business to be
brought before the meeting.
Section 4. DETERMINATIONS BY CHAIRMAN. The Chairman of any meeting in
respect of which a stockholder nomination or proposal has been submitted, may,
if the facts as determined by the Chairman in his sole discretion warrant,
determine and declare to the meeting that the stockholder nomination or proposal
was not made in accordance with the procedures set forth in this ARTICLE X, in
which event the defective nomination or proposal shall not be considered at such
meeting and shall be disregarded and no votes cast either for or against such
nomination or proposal shall be counted or, in the event votes have previously
been cast for or against such nomination or proposal, the duly appointed
inspectors for such meeting shall disregard any such votes.
Section 5. EXCLUSIVITY. Notwithstanding anything in these Articles of
Incorporation or the By-Laws of this Corporation to the contrary, no elections,
proposals or other business shall be conducted at any meeting of the
stockholders except in accordance with the procedures set forth in this ARTICLE
X.
THIRD: The amendment and restatement of the Articles of Incorporation of
the Corporation as hereinabove set forth has been duly advised by the Board of
Directors and approved by the stockholders of the Corporation as required by
law.
FOURTH: The current address of the principal office of the Corporation is
as set forth in ARTICLE IV of the foregoing amendment and restatement of the
Articles of Incorporation.
FIFTH: The name and address of the Corporation's current resident agent is
as set forth in ARTICLE IV of the foregoing amendment and restatement of the
Articles of Incorporation.
SIXTH: The number of directors of the Corporation and the names of those
currently in office are as set forth in ARTICLE VI of the foregoing amendment
and restatement of the Articles of Incorporation.
SEVENTH: The undersigned President acknowledges these Articles of
Amendment and Restatement to be the corporate act of the Corporation and as to
all matters or facts required to be verified under oath, the undersigned
President acknowledges that to the best of his knowledge, information and
belief, these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
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<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
and Restatement to be signed in its name and on its behalf by its President and
attested to by its Secretary on this 27th day of September, 1993.
MIDCONTINENT REIT, Inc.
By: /s/ John S. Gates, Jr.
---------------------------------------
John S. Gates, Jr., President
ATTEST: /s/ Paul S. Fisher.
---------------------------------------
Paul S. Fisher, Secretary
-16-
<PAGE>
THE ARTICLES OF AMENDMENT AND RESTATEMENT
OF
MIDCONTINENT REIT, INC.
CHANGING ITS NAME TO:
CENTERPOINT PROPERTIES CORPORATION
APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND SEPTEMBER 29, 1993 AT O'CLOCK A.M. AS IN CONFORMITY
WITH LAW AND ORDERED RECORDED.
---------------------
ORGANIZATION AND RECORDING SPECIAL
CAPITALIZATION FEE PAID: FEE PAID: FEE PAID:
$ $ 20.00 $
---------------------
IT IS HEREBY CERTIFIED, THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL
ENDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.
<PAGE>
ARTICLES OF MERGER
MERGING
C&R USA CORP.
An Illinois Corporation
WITH AND INTO
CENTERPOINT PROPERTIES CORPORATION
A Maryland Corporation
FIRST: C&R USA Corp., and CENTERPOINT PROPERTIES CORPORATION, being the
corporations which are the parties to these Articles of Merger (hereinafter
sometimes collectively referred to as the "Constituent Corporations"), do hereby
agree to effect a merger of said corporations upon the terms and conditions
herein set forth.
SECOND: The name of the successor corporation is CENTERPOINT PROPERTIES
CORPORATION, a corporation organized and existing under the laws of the State of
Maryland (the "Maryland Corporation"), which will continue its corporate
existence under its present name pursuant to the provisions of the Maryland
General Corporation Law. The Maryland Corporation has no office in the State of
Maryland.
THIRD: The name of the corporation to be merged into the successor
corporation is C&R USA CORP. (the "Illinois Corporation"), which is a
corporation incorporated under the Business Corporation Act of Illinois on
November 22, 1982, the corporate existence of which will cease upon the
effective date of the merger in accordance with the provisions of the Business
Corporation Act of Illinois. The Illinois Corporation has no office in the
State of Maryland and owns no land in the State of Maryland.
-1-
<PAGE>
FOURTH: No amendments to the Articles of Incorporation of the successor
corporation are to be effected as part of the merger, and upon the effective
date of the merger, the Articles of Incorporation of the Maryland Corporation as
amended and restated shall be the Articles of Incorporation of the successor
corporation.
FIFTH: (a) The total number of shares of capital stock which the
Illinois Corporation has authority to issue is 25,000, all of which are shares
of voting Common Stock, $2.50 par value per share, and of which 18,000 shares
are issued and outstanding. All of the issued and outstanding shares of the
capital stock of the Illinois Corporation are owned by Capital and Regional USA
Holdings Limited, a United Kingdom corporation.
(b) The total number of shares of stock which the Maryland Corporation has
authority to issue is 60,000,000, consisting of: 50,000,000 shares of Common
Stock, $.001 par value per share, of which one share is issued an outstanding,
and 10,000,000 shares of Series Preferred Stock, $.001 par value per share, of
which no shares are issued and outstanding. The one issued and outstanding
share of the Common Stock of the Maryland Corporation is owned by Capital and
Regional USA Holdings Limited, a United Kingdom corporation.
SIXTH: Upon the effective date of the merger, each of the issued and
outstanding shares of the Illinois Corporation will be canceled. The one issued
and outstanding share of Common Stock of the Maryland Corporation will continue
and remain as one issued and outstanding share of the Common Stock of the
successor corporation.
SEVENTH: The terms and conditions of the merger set forth in these
Articles were advised, authorized, and approved by each Constituent Corporation
in the manner and by the vote required by its respective charter and the laws of
the state where it is organized.
-2-
<PAGE>
EIGHTH: The terms and conditions of the merger set forth in these Articles
were duly approved by the Maryland Corporation pursuant to and in accordance
with Section 3-105 of the General Corporation Law of Maryland by all of the
members of the Board of Directors of the Maryland Corporation and by the sole
stockholder of the Maryland Corporation, without a meeting, by a joint unanimous
written consent executed on September 27, 1993.
NINTH: The terms and conditions of the merger set forth in these Articles
were duly authorized and approved by the Illinois Corporation in the manner and
by the vote required by the Articles of Incorporation of the Illinois
Corporation and the Business Corporation Act of the State of Illinois.
TENTH: The following additional provisions are deemed by the Constituent
Corporations necessary to effect the merger:
(a) The merger contemplated hereby shall become effective on September 29,
1993 (the "Effective Date").
(b) The By-Laws of the Maryland Corporation in effect on the Effective
Date shall continue as the By-Laws of the successor corporation.
(c) The persons who are the directors and officers of the Maryland
Corporation on the Effective Date shall continue as the directors and officers
of the successor corporation, and they shall hold office for the term provided
in the By-Laws of the successor corporation.
(d) Upon the Effective Date, the successor corporation shall thereupon and
thereafter possess all of the rights, privileges, immunities, and franchises,
both of a public or a private nature, of each of the Constituent Corporations;
and all property, real, personal and mixed, all debts due on whatever account,
including subscriptions to shares, and all choices in action, and all and every
other interest of or belonging to or due to each of the Constituent
Corporations,
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<PAGE>
shall be transferred to and vested in the successor corporation, without
further act or deed; and title to any real estate, or any interest therein,
vested in either of the Constituent Corporations shall not revert or be in any
way impaired by reason of the merger.
(e) The successor corporation shall thenceforth be responsible and liable
for all the liabilities and obligations of each of the Constituent Corporations;
and any claim existing or action or proceeding pending by or against either of
the Constituent Corporations may be prosecuted to judgment as if the merger had
not taken place, or the successor corporation may be substituted in its place;
and neither the rights of creditors nor any liens upon the property of either
Constituent Corporation shall be impaired by the merger.
IN WITNESS WHEREOF, these Articles of Merger are hereby signed for and on
behalf of C&R USA CORP. by its President, who does hereby acknowledge that said
Articles of Merger are the act of said corporation, and who does hereby state
under the penalties for perjury that the matters and facts set forth therein
with respect to authorization and approval of said merger are true in all
material respects to the best of his knowledge, information, and belief; and
these Articles of Merger are hereby signed for and on behalf of CENTERPOINT
PROPERTIES CORPORATION by its President, who does hereby acknowledge that said
Articles of Merger are the act of said corporation, and who does hereby state
under the penalties for perjury that the matters and facts stated therein with
respect to authorization and approval of said merger are true in all material
respects to the best of his knowledge, information, and belief.
Dated: September 27, 1993
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<PAGE>
C&R USA CORP.
By: /s/ John S. Gates, Jr.
--------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
- ------------------------------
Paul S. Fisher, Secretary
Dated: September 27, 1993
CENTERPOINT PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
--------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
- ------------------------------
Paul S. Fisher, Secretary
-5-
<PAGE>
ARTICLES OF MERGER
OF
C AND R USA CORP.
(AN IL CORP.)
INTO
CENTERPOINT PROPERTIES CORPORATION
(MD. CORP.)
SURVIVOR
APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND SEPTEMBER 29, 1993 AT 2:45 P.M. AS IN CONFORMITY WITH LAW
AND ORDERED RECORDED.
---------------
ORGANIZATION AND RECORDING SPECIAL
CAPITALIZATION FEE PAID: FEE PAID: FEE PAID:
$ $ 20.00 $
---------------------
D3714797
IT IS HEREBY CERTIFIED THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL
INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.
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<PAGE>
CERTIFICATE OF CORRECTION
TO CORRECT AN ERROR IN ARTICLES OF MERGER
MERGING C&R USA CORP., AN ILLINOIS CORPORATION,
WITH AND INTO CENTERPOINT PROPERTIES CORPORATION,
A MARYLAND CORPORATION
Pursuant to the provisions of Section 1-207 of the General Corporation Law
of Maryland, the undersigned execute the following Certificate of Correction.
1. The names of the parties to the document being corrected are C&R USA
Corp., an Illinois corporation (the "Illinois Corporation") and CenterPoint
Properties Corporation, a Maryland corporation (the "Maryland Corporation").
2. Said parties filed Articles of Merger with the Department of
Assessments and Taxation of the State of Maryland on September 29, 1993. Said
document requires correction as permitted under the provisions of Section 1-207
of the General Corporation Law of Maryland.
3. The error in said document to be corrected is as follows:
It was incorrectly stated in Article Sixth of the Articles of Merger that
no additional shares of the Maryland Corporation would be issued in the merger.
4. The foregoing inaccuracy in the document is corrected as follows:
Article Sixth of the Articles of Merger is deleted in its entirety, and the
following is substituted in its place:
"SIXTH: Upon the effective date of the merger, each of the issued and
outstanding capital shares of the Illinois Corporation, all of which are
owned by Capital and Regional USA Holdings Limited, will be canceled. In
consideration of such cancellation, 1,169,705 shares of the authorized but
unissued Common Stock of the Maryland Corporation will be issued to Capital
and Regional USA Holdings Limited as of the effective date of the merger.
The one share of the Common Stock of the Maryland Corporation issued and
outstanding immediately prior to the effective date of the merger and owned
by Capital and Regional USA
-7-
<PAGE>
Holdings Limited will remain as one issued and outstanding share of the
Common Stock of the Maryland Corporation."
IN WITNESS WHEREOF, this Certificate of Correction is hereby signed for and
on behalf of C&R USA CORP. by its President, who does hereby acknowledge that
said Certificate of Correction is the act of said corporation, and who does
hereby state under the penalties for perjury that the matters and facts set
forth therein are true in all material respects to the best of his knowledge,
information, and belief; and this Certificate of Correction is hereby signed for
and on behalf of CENTERPOINT PROPERTIES CORPORATION by its President, who does
hereby acknowledge that said Certificate of Correction is the act of said
corporation, and who does hereby state under the penalties for perjury that the
matters and facts stated therein are true in all material respects to the best
of his knowledge, information, and belief.
Dated: October 26, 1993
C&R USA CORP.
C&R USA CORP.
By: /s/ John S. Gates, Jr.
--------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
- ------------------------------
Paul S. Fisher, Secretary
Dated: October 26, 1993
CENTERPOINT PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
--------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
- ------------------------------
Paul S. Fisher, Secretary
-8-
<PAGE>
CERTIFICATE OF CORRECTION
OF
ARTICLES OF MERGER
OF
CENTERPOINT PROPERTIES CORPORATION
APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND OCTOBER 28, 1993 AT 3:20 P.M. AS IN CONFORMITY WITH LAW AND
ORDERED RECORDED.
---------------
ORGANIZATION AND RECORDING SPECIAL
CAPITALIZATION FEE PAID: FEE PAID: FEE PAID:
$ $ $
---------------------
D3714797
IT IS HEREBY CERTIFIED THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL
INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.
-9-
<PAGE>
ARTICLES OF MERGER
MERGING
CAPITAL AND REGIONAL PROPERTIES CORPORATION
A DELAWARE CORPORATION
WITH AND INTO
CENTERPOINT PROPERTIES CORPORATION
A MARYLAND CORPORATION
FIRST: CAPITAL AND REGIONAL PROPERTIES CORPORATION, and CENTERPOINT
PROPERTIES CORPORATION, being the corporations which are the parties to these
Articles of Merger (hereinafter sometimes collectively referred to as the
"Constituent Corporations"), do hereby agree to effect a merger of said
corporations upon the terms and conditions herein set forth.
SECOND: The name of the successor corporation is CENTERPOINT PROPERTIES
CORPORATION, a corporation organized and existing under the laws of the State of
Maryland (the "Maryland Corporation"), which will continue its corporate
existence under its present name pursuant to the provisions of the Maryland
General Corporation law. The Maryland Corporation has no office in the State of
Maryland.
THIRD: The name of the corporation to be merged into the successor
corporation is CAPITAL AND REGIONAL PROPERTIES CORPORATION (the "Delaware
Corporation"), which is a corporation incorporated under the General Corporation
Law of Delaware on April 17, 1984, the corporate existence of which will cease
upon the effective date of the merger in accordance with the provisions of the
General Corporation Law of Delaware. The Delaware Corporation has no office in
the State of Maryland and owns no land in the State of Maryland.
<PAGE>
FOURTH: No amendments to the Articles of Incorporation of the successor
corporation are to be effected as part of the merger, and upon the effective
date of the merger, the Articles of Incorporation of the Maryland Corporation as
amended and restated shall be the Articles of Incorporation of the successor
corporation.
FIFTH: (a) The total number of shares of capital stock which the Delaware
Corporation has authority to issue is 1,000, all of which are shares of voting
Common Stock, without par value, and of which 960 shares are issued and
outstanding. Of said issued and outstanding shares, 720 shares are owned by the
Maryland Corporation, and 240 shares are owned by John S. Gates, Jr. ("Gates").
(b) The total number of shares of stock which the Maryland Corporation has
authority to issue is 60,000,000, consisting of: 50,000,000 shares of Common
Stock, $.001 par value per share, of which 1,008,478 shares are issued and
outstanding; and 10,000,000 shares of Series Preferred Stock, $.001 par value
per share, of which no shares are issued and outstanding.
SIXTH: Upon the effective date of the merger, all of the issued and
outstanding shares of the Delaware Corporation owned by the Maryland Corporation
will be canceled. All of the issued and outstanding shares of the Delaware
Corporation owned by Gates will be converted into and become 252,669 shares of
the Common Stock of the successor corporation. From and after the effective
date of the merger, the 1,008,478 shares of the Common Stock of the Maryland
Corporation issued and outstanding immediately prior to the merger will continue
without change as 1,008,478 issued and outstanding shares of the Common Stock of
the successor corporation.
-2-
<PAGE>
SEVENTH: The terms and conditions of the merger set forth in these
Articles were advised, authorized, and approved by each Constituent Corporation
in the manner and by the vote required by its respective charter and the laws of
the state where it is organized.
EIGHTH: The terms and conditions of the merger set forth in these Articles
were duly approved by the Maryland Corporation pursuant to and in accordance
with Section 3-105 of the General Corporation Law of Maryland by all of the
members of the board of Directors of the Maryland Corporation and by the sole
stockholder of the Maryland Corporation, without a meeting, by a joint unanimous
written consent executed on September 27, 1993.
NINTH: The terms and conditions of the merger set forth in these Articles
were duly authorized and approved by the Delaware Corporation in the manner and
by the vote required by the Certificate of Incorporation of the Delaware
Corporation and the General Corporation Law of the State of Delaware.
TENTH: The following additional provisions are deemed by the Constituent
Corporations necessary to effect the merger:
(a) The merger contemplated hereby shall become effective on
November 30, 1993 (the "Effective Date").
(b) The By-Laws of the Maryland Corporation in effect on the
Effective Date shall continue as the By-Laws of the successor corporation.
(c) The persons who are the directors and officers of the Maryland
Corporation on the Effective Date shall continue as the directors and
officers of the successor corporation, and they shall hold office for the
term provided in the By-Laws of the successor corporation.
-3-
<PAGE>
(d) Upon the Effective Date, the successor corporation shall
thereupon and thereafter possess all of the rights, privileges, immunities, and
franchises, both of a public or a private nature, of each of the Constituent
Corporations; and all property, real, personal and mixed, all debts due on
whatever account, including subscriptions to shares, and all choses in action,
and all and every other interest of or belonging to or due to each of the
Constituent Corporations, shall be transferred to and vested in the successor
corporation, without further act or deed; and title to any real estate, or any
interest therein, vested in either of the Constituent Corporations shall not
revert or be in any way impaired by reason of the merger.
(e) The successor corporation shall thenceforth be responsible and
liable for all the liabilities and obligations of each of the Constituent
Corporations, and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations may be prosecuted to judgment as
if the merger had not taken place, or the successor corporation may be
substituted in its place; and neither the rights of creditors nor any liens upon
the property of either Constituent Corporation shall be impaired by the merger.
IN WITNESS WHEREOF, these Articles of Merger are hereby signed for and on
behalf of CAPITAL AND REGIONAL PROPERTIES CORPORATION by its President, who does
hereby acknowledge that said Articles of Merger are the act of said corporation,
and who does hereby state under the penalties for perjury that the matters and
facts set forth therein with respect to authorization and approval of said
merger are true in all material respects to the best of his knowledge,
information, and belief; and these Articles
-4-
<PAGE>
of Merger are hereby signed for and on behalf of CENTERPOINT PROPERTIES
CORPORATION by its President, who does hereby acknowledge that said Articles of
Merger are the act of said corporation, and who does hereby state under the
penalties for perjury that the matters and facts stated therein with respect to
authorization and approval of said merger are true in all material respects to
the best of his knowledge, information, and belief.
Dated: November 29, 1993
CAPITAL AND REGIONAL PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
------------------------------
John S. Gates, Jr., President
Attest:
/s/ Richard A. Ungaretti
- ------------------------------
Richard A. Ungaretti,
Assistant Secretary
Dated: November 29, 1993
CENTERPOINT PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
- --------------------------------
Paul S. Fisher, Secretary
-5-
<PAGE>
ARTICLES OF MERGER
OF
CAPITAL AND REGIONAL PROPERTIES CORPORATION
(A DE CORP.)
INTO
CENTERPOINT PROPERTIES CORPORATION
(A MD CORP.)
SURVIVOR
APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND NOVEMBER 30, 1993 AT 4:31 P.M. AS IN CONFORMITY WITH LAW
AND ORDERED RECORDED.
---------------
ORGANIZATION AND RECORDING SPECIAL
CAPITALIZATION FEE PAID: FEE PAID: FEE PAID:
$ $ $
---------------------
D3714797
IT IS HEREBY CERTIFIED THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL
INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.
-6-
<PAGE>
ARTICLES OF MERGER
MERGING
NAPERVILLE PROPERTIES CORPORATION
An Illinois Corporation
WITH AND INTO
CENTERPOINT PROPERTIES CORPORATION
A Maryland Corporation
FIRST: NAPERVILLE PROPERTIES CORPORATION and CENTERPOINT PROPERTIES
CORPORATION, being the corporations which are the parties collectively referred
to as the "Constituent Corporations"), do hereby agree to effect a merger of
said corporations upon the terms and conditions herein set forth.
SECOND: The name of the successor corporation is CENTERPOINT PROPERTIES
CORPORATION, a corporation organized and existing under the laws of the State of
Maryland (the "Maryland Corporation"), which will continue its corporate
existence under its present name pursuant to the provisions of the Maryland
General Corporation Law. The Maryland Corporation has no office in the State of
Maryland.
THIRD: The name of the corporation to be merged into the successor
corporation is NAPERVILLE PROPERTIES CORPORATION (the "Illinois Corporation"),
which is a corporation incorporated under the Business Corporation Act of
Illinois on November 4, 1993, the corporate existence of which will cease upon
the effective date of the merger in accordance with the provisions of the
Business Corporation Act of Illinois. The Illinois Corporation has no office in
the State of Maryland and owns no land in the State of Maryland.
<PAGE>
FOURTH: No amendments to the Articles of Incorporation of the successor
corporation are to be effected as part of the merger, and upon the effective
date of the merger, the Articles of Incorporation of the Maryland Corporation as
amended and restated shall be the Articles of Incorporation of the successor
corporation.
FIFTH: (a) The total number of shares of capital stock which the Illinois
Corporation has authority to issue is 10,000, all of which are shares of voting
Common Stock, without par value per share, and of which 4,600 shares are issued
and outstanding. All of the issued and outstanding shares of the capital stock
of the Illinois Corporation are owned by the Maryland Corporation.
(b) The total number of shares of stock which the Maryland Corporation has
authority to issue is 60,000,000, consisting of: 50,000,000 shares of Common
Stock, $.001 par value per share, of which 5,348,054 shares are issued and
outstanding, and 10,000,000 shares of Series Preferred Stock, $.001 par value
per share, of which no shares are issued and outstanding.
SIXTH: Upon the effective date of the merger, each of the issued and
outstanding shares of the Illinois Corporation will be canceled. The 5,348,054
issued and outstanding shares of Common Stock of the Maryland Corporation will
continue and remain as issued and outstanding shares of the Common Stock of the
successor corporation.
SEVENTH: The terms and conditions of the merger set forth in these
Articles were advised, authorized, and approved by each Constituent Corporation
in the manner and by the vote required by its respective charter and the laws of
the state where it is organized.
EIGHTH: The terms and conditions of the merger set forth in these Articles
were duly approved by the Maryland Corporation pursuant to and in accordance
with Section 3-105 of the
-2-
<PAGE>
General Corporation Law of Maryland by unanimous vote of all of the members of
the Board of Directors of the Maryland Corporation, at a meeting, held on March
11, 1994.
NINTH: The terms and conditions of the merger set forth in these Articles
were duly authorized and approved by the Board of Directors of the Illinois
Corporation in the manner and by the vote required by the Articles of
Incorporation of the Illinois Corporation and the Business Corporation Act of
the State of Illinois.
TENTH: The following additional provisions are deemed by the Constituent
Corporations necessary to effect the merger:
(a) The merger contemplated hereby shall become effective upon the filing
of Articles of Merger with the Secretary of State (the "Effective Date").
(b) The By-Laws of the Maryland Corporation in effect on the Effective
Date shall continue as the By-Laws of the successor corporation.
(c) The persons who are the directors and officers of the Maryland
Corporation on the Effective Date shall continue as the directors and officers
of the successor corporation, and they shall hold office for the term provided
in the By-Laws of the successor corporation.
(d) Upon the Effective Date, the successor corporation shall thereupon and
thereafter possess all of the rights, privileges, immunities, and franchises,
both of a public or a private nature, of each of the Constituent Corporations;
and all property, real, personal and mixed, all debts due on whatever account,
including subscriptions to shares, and all choses in action, and all and every
other interest of or belonging to or due to each of the Constituent
Corporations, shall be transferred to and vested in the successor corporation,
without further act or deed; and title to
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<PAGE>
any real estate, or any interest therein, vested in either of the Constituent
Corporations shall not revert or be in any way impaired by reason of the merger.
(e) The successor corporation shall thenceforth be responsible and liable
for all the liabilities and obligations of each of the Constituent Corporations;
and any claim existing or action or proceeding pending by or against either of
the Constituent Corporations may be prosecuted to judgment as if the merger had
not taken place, or the successor corporation may be substituted in its place;
and neither the rights of creditors nor any liens upon the property of either
Constituent Corporation shall be impaired by the merger.
IN WITNESS WHEREOF, these Articles of Merger are hereby signed for and on
behalf of NAPERVILLE PROPERTIES CORPORATION by its President, who does hereby
acknowledge that said Articles of Merger are the act of said corporation, and
who does hereby state under the penalties for perjury that the matters and facts
set forth therein with respect to authorization and approval of said merger are
true in all material respects to the best of his knowledge, information, and
belief; and these Articles of Merger are hereby signed for and on behalf of
CENTERPOINT PROPERTIES CORPORATION by its President, who does hereby acknowledge
that said Articles of Merger are the act of said corporation, and who does
hereby state under the penalties for perjury that the matters and facts stated
therein with respect to authorization and approval of said merger are true in
all material respects to the best of his knowledge, information, and belief.
-4-
<PAGE>
Dated: March 11, 1994
NAPERVILLE PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
---------------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
-----------------------------
Paul S. Fisher, Secretary
Dated: March 11, 1994
CENTERPOINT PROPERTIES CORPORATION
By: /s/ John S. Gates, Jr.
------------------------------
John S. Gates, Jr., President
Attest:
/s/ Paul S. Fisher
- ------------------------
Paul S. Fisher, Secretary
-5-
<PAGE>
ARTICLES OF MERGER
OF
NAPERVILLE PROPERTIES CORPORATION
(AN IL CORP.)
INTO
CENTERPOINT PROPERTIES CORPORATION
(A MD CORP.)
SURVIVOR
APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND APRIL 7, 1994 AT 2:45 P.M. AS IN CONFORMITY WITH LAW AND
ORDERED RECORDED.
---------------
ORGANIZATION AND RECORDING SPECIAL
CAPITALIZATION FEE PAID: FEE PAID: FEE PAID:
$ $ $
---------------------
D3714797
IT IS HEREBY CERTIFIED THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL
INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND.
CENTERPOINT PROPERTIES CORPORATION
ARTICLES SUPPLEMENTARY
CenterPoint Properties Corporation, a Maryland corporation (the
"Corporation"), having its principal office in Chicago, Illinois, hereby
certifies to the State Department of Assessments and Taxation of Maryland
("SDAT") that:
<PAGE>
FIRST: Pursuant to authority expressly vested in the Board of
Directors of the Corporation by Article 5.3 of the Charter of the Corporation,
the Board of Directors has duly divided and classified 2,272,727 shares of the
Preferred Stock of the Corporation into a series designated Series A Preferred
Stock and has provided for the issuance of such series.
SECOND: Subject in all cases to the provisions of Article Seven of
the Charter of the Corporation with respect to Excess Stock, the following is a
description of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of the Series A Preferred Stock of the Corporation:
(1) DESIGNATION AND AMOUNT. The designation of the Preferred Stock
described in Article First hereof shall be "Series A Preferred Stock (par value
$.001 per share)". The number of shares of the Series A Preferred Stock to be
authorized shall be 2,272,727. The Series A Preferred Stock shall rank senior
to the Corporation's Common Stock with respect to rights upon liquidation.
(2) DIVIDEND RIGHTS.
(a) The holders of records of outstanding shares of Series A
Preferred Stock shall be entitled to receive, when and as declared by the Board
of Directors, out of funds legally available therefor, cash dividends which are
payable when, as and if authorized by the Board of Directors, PARI PASSU with
any dividends paid on the Corporation's Common Stock, in an amount per share
equal to the Series A Dividend Amount, as in effect from time to time. The
initial per share Series A Dividend Amount per annum shall be equal to $1.6068.
Each calendar quarter hereafter (or, if the date of original issuance of the
Series A Preferred Stock (the "Original Issue Date") is not on the first day of
a calendar quarter, the period beginning on the Original Issue Date and ending
on the last day of the calendar quarter of issuance) is referred to hereinafter
as a "Dividend Period." The amount of dividends on the Series A Preferred
Stock payable with respect to the initial Dividend Period, or any other Dividend
Period shorter or longer than a full dividend period, shall be computed ratably
on the basis of the actual number of days in such Dividend Period. In the event
of any change in the quarterly cash dividend per share applicable to the Common
Stock after the date of these Articles Supplementary, the quarterly cash
dividend per share of the Series A Preferred Stock shall be adjusted for the
same dividend period by an equal dollar amount.
(b) In the event the Corporation shall declare a distribution payable
in (i) securities of other persons, (ii) evidences of indebtedness issued by the
Corporation or other persons, (iii) assets (excluding cash dividends) or (iv)
options or rights to purchase capital stock or evidences of indebtedness in the
Corporation or other persons, then, in each such case for the purpose of this
Section 2(b), the holders of the Series A Preferred Stock shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the Corporation into which their shares
of Series A Preferred Stock are or would be convertible (assuming such shares of
Series A Preferred Stock were then
-2-
<PAGE>
convertible) as of the record date fixed for determination of the holders of
Common Stock of the ;Corporation entitled to receive such distribution.
(3) LIQUIDATION RIGHTS.
(a) Subject to any prior rights of any class or series of stock, in
the event of any liquidation, dissolution, or winding up of the Corporation,
either voluntary or involuntary, the holders of Series A Preferred Stock shall
be entitled to receive from the assets of the Corporation, whether represented
by capital stock, additional paid in capital or retained earnings, payment in
cash of an amount equal to $22.00 per share of Series A Preferred Stock held,
times the Conversion Ratio (as defined in Section 4.2 below), plus (b) an amount
equal to all declared but unpaid dividends, for each share of Series A Preferred
Stock then held by them. If upon the occurrence of such event, the assets and
funds thus distributed among the holders of the Series A Preferred Stock shall
be insufficient to permit the payment to such holders of the full aforesaid
amounts to which they are entitled, then, subject to any prior rights of any
classes or series of stock, the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably to the holders
of the Series A Preferred Stock in proportion to the aggregate amounts owed to
each such holder.
(b) Subject to any prior rights of any other class or series of
stock, after the payment or setting apart of payment to the holders of Series A
Preferred Stock of the full preferential amounts to which they shall be entitled
pursuant to paragraph 3(a) above, the holders of Series A Preferred Stock shall
be entitled to receive the remaining assets of the Corporation available for
distribution pro rata with the other holders of shares of capital stock of the
Corporation as though they were the holders of the number of shares of Common
Stock of the Corporation into which their shares of Series A Preferred Stock are
or would be convertible (assuming such shares of Series A Preferred Stock were
then convertible) as of the record date applicable to such distribution, but
only to the extent that the amount payable pursuant to this Section 3(b) exceeds
the amount payable to the holders of Series A Preferred Stock under Section 3(a)
above.
(c) Neither a consolidation or merger of the Corporation with or into
any other corporation, nor a merger of any other corporation into the
Corporation, nor the purchase or redemption of all or part of the outstanding
shares of any class or classes of stock of the Corporation, nor a sale or
transfer of all or any part of its assets, shall be considered a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
(c).
(4) CONVERSION.
4.1 MANDATORY CONVERSION INTO NON-VOTING COMMON STOCK
(i) In the event that the Corporation shall file Articles of
Amendment with the SDAT in substantially the form attached hereto as Exhibit A
(the "Class B Common Articles of Amendment"), immediately upon such filing, each
outstanding share of Series A Preferred Stock shall be converted automatically
into one fully paid and nonassessable share of non-voting
-3-
<PAGE>
common stock of the Corporation having the terms established by the Class B
Common Articles of Amendment (the "Class B Common Stock").
(ii) The Corporation shall make such arrangements as it deems
appropriate for the issuance as soon as practicable of certificates representing
shares of Class B Common Stock issued upon the mandatory conversion of the
Series A Preferred Stock in exchange for and contingent upon surrender by the
holder of the certificate(s) representing such holder's shares of Series A
Preferred Stock. From and after the date of mandatory conversion, certificates
representing shares of Series A Preferred Stock shall be deemed to represent an
equal number of shares of Class B Common Stock.
4.2 RIGHT TO CONVERT
If mandatory conversion of the Series A Preferred Stock as
provided in Section 4.1 shall not have occurred prior thereto, beginning on
September 21, 1998, the holders of shares of Series A Preferred Stock shall have
the right, at their option, to convert each such share, at any time and from
time to time, into one fully paid and nonassessable share of Common Stock (the
"Conversion Ratio", which is subject to adjustment as provided below);
PROVIDED, HOWEVER, that no holder of Series A Preferred Stock shall be entitled
to convert shares of such Series A Preferred Stock shall be entitled to convert
shares of such Series A Preferred Stock into Common Stock pursuant to the
foregoing provision, if, as a result of such conversion, such person would
become the Beneficial Owner of more than 4.9% of the Corporation's outstanding
Common Stock. "Beneficial Owner" shall have the meaning set forth in Rule 13d-3
under the Securities Exchange Act of 1934 (or any successor provision thereto).
Notwithstanding the foregoing, so long as mandatory conversion has not occurred,
the foregoing conversion right may be exercised at any time after the date of
these Articles supplementary and irrespective of the 4.9% limitation (and no
such limit shall apply) if any of the following circumstances occurs:
(i) For any two consecutive fiscal quarters, the
aggregate amount outstanding as of the end of the quarter under (1) all
mortgage indebtedness of the Corporation and its consolidated entities and
(2) unsecured indebtedness of the Corporation and its consolidated entities
for money borrowed that has not made generally subordinate to the other
indebtedness for borrowed money of the Corporation or any consolidated
entity exceeds fifty-five percent (55%) of the Corporation's total market
capitalization, defined as the market value of all of the Corporation's
outstanding capital stock, assuming the conversion of all outstanding
convertible securities, including the Series A Preferred Stock plus the
amount of the Company's total non-convertible indebtedness (ass as such
items of indebtedness and capitalization are reported in consolidated
financial statements contained in the Corporation's Form 10-Ks and Form
10-Qs as filed with the Securities and Exchange Commission); or
(ii) Fewer than three of John S. Gates, Jr., Robert M.
Stovall, Michael M. Mullen and Paul S. Fisher are continuing as Key
Managers of the
-4-
<PAGE>
Company. (For purposes of this subparagraph (ii), a "Key Manager"
shall mean a Person who is (a) employed by the Company and (b) actively
participates as a senior executive officer in the management of the
Company.); or
(iii) If (A) the Corporation shall be party to, or
shall have announced or entered into an agreement for, any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange or sale of all or substantially all of its assets (each of the
foregoing a "Transaction")), in each case as a result of which shares of
Common Stock shall have been or will be converted into the right to receive
stock, securities or other property (including cash or any combination
thereof) or which has resulted or will result in the holders of Common
Stock immediately prior to the Transaction owning less than 50% of the
Common Stock after the Transaction, or (b) a "change of control" as defined
in the next sentence occurs with respect to the Corporation. A change of
control shall mean the acquisition (including by virtue of a merger, share
exchange or other business combination) by one stockholder or a group of
stockholders acting in concert of the power to elect a majority of the
Corporation's board of directors. The Corporation shall notify the
holders of Series A Preferred Stock promptly if any of the events listed in
this Section 4.1(iii) shall occur.
4.3 MANDATORY CONVERSION INTO COMMON STOCK
(i) If mandatory conversion has not occurred pursuant to Section
4.1 above, beginning on September 30, 1998, and at the end of each calendar
quarter thereafter, such number of shares of Series A Preferred Stock will
mandatorily convert into such number of shares of Common Stock as will result in
the holders of the Series A Preferred Stock owning, in the aggregate, 4.9% of
the then outstanding shares of Common Stock; and if on any such date the total
number of outstanding shares of Series A Preferred Stock would not, upon
conversion, result in the holders thereof owning, in the aggregate, 4.9% of the
then outstanding shares of Common Stock, then all such outstanding shares of
Series A Preferred Stock will mandatorily convert into Common Stock. The
Company will notify the Investor in writing at least five (5) business days
prior to the end of each calendar quarter as to the number of shares of Series A
Preferred Stock subject to mandatory conversion, which number will be revised,
if necessary, as a result of intervening events, no later than two (2) business
days after the end of the applicable quarter.
(ii) On the tenth anniversary of the Original Issue Date, each
remaining share of Series A Preferred Stock which has not been converted to
Class B Common Stock or Common Stock shall mandatorily convert to that number of
fully paid and nonassessable shares of Common Stock equal to the Conversion
Ratio, as adjusted, regardless of the 4.9% limitation described in Section 4.1
above.
(iii) The Corporation shall make such arrangements as it
deems appropriate for the issuance as soon as practicable of certificates
representing shares of Common Stock issued upon the mandatory conversion of the
Series A Preferred Stock in exchange for and contingent upon surrender by the
holder of the certificate(s) representing such holder's shares of
-5-
<PAGE>
Series A Preferred Stock. From and after the date of mandatory conversion,
certificates representing shares of Series A Preferred Stock shall be deemed to
represent an equal number of shares of Common Stock.
4.4 PROCEDURE FOR CONVERSION. In order to exercise its right to
convert shares of Series A Preferred Stock into Common Stock pursuant to Section
4.2 above, the holder thereof shall surrender the certificate(s) therefor, duly
endorsed if the Corporation shall so require, or accompanied by appropriate
instruments of transfer satisfactory to the corporation, at the office of any
transfer agent for the Series A Preferred Stock, or if there is no such transfer
agent, at the principal offices of the Corporation, or at such other office as
may be designated by the Corporation, together with written notice that such
holder elects to convert such shares. Such notice shall also state the name(s)
and address(es) in which such holder wishes the certificate(s) for the shares of
Common Stock issuable upon conversion to be issued. As soon as practicable
after an optional conversion, the Corporation shall issue and deliver at said
office a certificate or certificates for the number of whole shares of Common
Stock issuable upon conversion of the shares of Series A Preferred Stock duly
surrendered for conversion, to the person(s) entitled to receive the same.
Shares of Series A Preferred Stock shall be deemed to have been converted
immediately prior to the close of business on the date on which the certificates
therefor and notice of election to convert the same are duly received by the
Corporation in accordance with the foregoing provisions, and the person(s)
entitled to receive the Common Stock issuable upon such conversion shall be
deemed for all purposes as record holder(s) of such Common Stock as of the close
of business on such date.
4.5 NO FRACTIONAL SHARES. No fractional shares shall be issued
upon conversion of the Series A Preferred Stock into Common Stock, and the
number of shares of Common Stock to be issued shall be rounded to the nearest
whole share. Whether or not fractional shares would be issuable upon such
conversion shall be determined on the basis of the total number of shares of
Series A Preferred Stock the holder is at the time converting into Common Stock
and the number of shares of Common Stock issuable upon such aggregate
conversion. As to any final fraction of a share which the holder of one or more
shares of Series A Preferred Stock would be entitled to receive upon exercise of
his conversion right, the Corporation shall pay a cash adjustment in an amount
equal to the same fraction of the last sale price (or bid price if there were no
sales) per share of Common Stock on the American Stock Exchange on the business
day which next precedes the conversion date or, if such Common Stock is not then
listed or admitted to trading on such Exchange, on any national securities
exchange, of the market price per share (as determined in a manner prescribed by
the Board of Directors of the Corporation) at the close of business on the
business day which next precedes the conversion date.
4.6 ADJUSTMENTS.
(i) The Conversion Ration shall be subject to adjustment as
follows:
(A) In the event the Corporation shall at any time (i) pay
a dividend or make a distribution to holders of Common Stock in shares of
capital stock, (ii)
-6-
<PAGE>
subdivide its outstanding shares of Common Stock into a larger number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller number of
shares, or (iv) issue by reclassification of its shares of Common Stock any
shares of the Corporation, the Conversion Ratio in effect immediately prior
thereto shall be adjusted as provided below so that the holder of any share of
Series A Preferred Stock thereafter surrendered for conversion shall be entitled
to receive the number of shares of the Corporation which such holder would have
owned or have been entitled to receive after the happening of any of the events
described above, had such shares of Series A Preferred Stock been converted
immediately prior to the happening of such event. Any adjustment made pursuant
to this subparagraph (a) shall become effective retroactively immediately after
the record date in the case of a dividend and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification.
(B) In case the Corporation shall issue rights or warrants
to all holders of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less thank the current market price
(as hereinafter defined) per share of Common Stock at the record date mentioned
below, the number of shares of Common Stock into which each share of Series A
Preferred Stock shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which such share of Series
A Preferred Stock was therefore convertible by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered would purchase
at such current market price. Such adjustment shall be made whenever such
rights or warrants are issued, and shall become effective retroactively
immediately after the record date for the determination of stockholders entitled
to receive such rights or warrants.
(C) In case the Corporation shall distribute to all holders
of its Common Stock evidences of its indebtedness or assets or rights or
warrants to subscribe for or purchase securities issued by the Corporation or
property of the Corporation (excluding those referred to in subparagraph (b)
above), then in each such case the number of shares of Common Stock into which
each share of Series A Preferred Stock shall thereafter be convertible shall be
determined by multiplying the number of shares of Common Stock into which such
share of Series A Preferred Stock was theretofore convertible by a fraction, of
which the numerator shall be the current market price per share of the Common
Stock, and of which the denominator shall be such current market price per share
of Common Stock, less the then fair market value (as determined by the Board of
Directors of the Corporation, whose determination shall be conclusive) of the
portion of the assets or evidence of indebtedness so distributed or of such
rights or warrants applicable to one share of the Common Stock. Such adjustment
shall be made whenever any such distribution is made, and shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(D) If any such rights or warrants referred to above shall
expire without having been exercised, the Conversion Ratio as theretofore
adjusted because of the issue
-7-
<PAGE>
of such rights or warrants shall forthwith be readjusted to the Conversion Ratio
which would have been in effect had an adjustment been made on the basis that
only the rights or warrants so issued or sold were those rights or warrants
actually exercised and that with respect to any such rights or warrants to
subscribe for or purchase securities issued by the Corporation, other than
Common Stock or property of the Corporation, the fair market value thereof shall
be the fair market value of the rights or warrants actually exercised. If any
such rights or warrants shall expire without having been exercised, the
Conversion Ratio as theretofore adjusted because of the issue of such rights or
warrants shall forthwith be readjusted to the Conversion Ratio which would have
been in effect had an adjustment been made on the basis that the only rights or
warrants, so issued or sold, were those rights or warrants actually exercised
and that with respect to any such rights or warrants to subscribe for or
purchase securities issued by the Corporation, other than Common Stock, or
property of the Corporation the fair market value thereof shall be the fair
market value of the rights or warrants actually exercised.
For the purpose of any computation under this paragraph (i) the
current market price per share of Common Stock at any date shall be deemed to be
the average of the daily closing prices for the 15 consecutive business days
commencing 30 business days before the day in question. The closing price for
each day shall be the last reported sale price regular way or, in the case no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the American Stock Exchange,
or, if the Common Stock is not listed or admitted to trading on such Exchange,
on any national securities exchange, designated by the Board of Directors, on
which the Common Stock is listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any American Stock Exchange or New
York Stock Exchange firm selected from time to time by the Corporation for the
purpose.
All calculations under this paragraph (i) shall be made to the nearest
cent or to the nearest 1/100th of a share as the case may be.
(ii) No adjustment of the Conversion Ratio shall be made as a
result of or in connection with the issuance of Common Stock of the Corporation
pursuant to options or stock purchase agreements now or hereafter granted or
entered into with directors, officers or employees of the Corporation or its
subsidiaries in connection with their employment, whether entered into at the
beginning of the employment or at any time thereafter.
(iii) In case of:
(A) any capital reorganization of the Corporation, or
(B) the consolidation or merger of the Corporation with or
into another corporation, or
(C) a statutory share exchange whereby the Corporation's
Common Stock is converted into property other than cash, or
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<PAGE>
(D) the sale, transfer or other disposition of all or
substantially all of the property, assets or business of the Corporation as a
result of which sale, transfer or other disposition property other than cash
shall be payable or distributable to the holders of the Common Stock, then, in
each such case, each share of Series A Preferred Stock shall thereafter be
convertible into the number and class of shares or other securities or property
of the Corporation, or of the corporation resulting from such consolidation or
merger or with or to which such statutory share exchange, sale, transfer or
other disposition shall have been made, to which the Common Stock otherwise
issuable upon conversion of such share of Series A Preferred Stock would have
been entitled upon such reorganization, consolidation, merger, statutory share
exchange, or sale, transfer or other disposition if outstanding at the time
thereof; and in any such case appropriate adjustment, as determined by the Board
of Directors, shall be made in the application of the provisions set forth in
this Section 4.6 with respect to the conversion rights thereafter of the holders
of the Series A Preferred Stock, to the end that such provisions shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares or securities or other property thereafter issuable or deliverable upon
the conversion of Series A Preferred Stock. Proper provision shall be made as a
part of the terms of any such reorganization, consolidation, merger, statutory
share exchange or sale, transfer or other disposition whereby the conversion
rights of the holders of Series A Preferred Stock shall be protected and
preserved in accordance with the provisions of this paragraph (iii). The
provisions of this paragraph (iii) shall similarly apply to successive capital
reorganizations, consolidations, mergers, statutory share exchanges, sales,
transfers or other dispositions of property as aforesaid.
(iv) Upon conversion of any shares of Series A Preferred Stock,
no payment or. adjustment shall be made on account of dividends accrued, whether
or not in arrears, on such shares or on account of dividends declared and
payable to holders of Common Stock of record on a date prior to the date of
conversion.
(v) Whenever the Conversion Ratio shall be adjusted as herein
provided, the Corporation shall cause to be mailed by first class mail, postage
prepaid, as soon as practicable to each holder of record of shares of Series A
Preferred Stock a notice stating that the Conversion Ratio has been adjusted and
setting forth the adjusted Conversion Ratio, together with an explanation of the
calculation of the same.
(vi) If the Corporation shall be party to any Transaction in each
case as a result of which shares of Common Stock shall be converted into the
right to receive stock, securities or other property (including cash or any
combination thereof), the holder of each share of Series A Preferred Stock shall
have the right after such Transaction to convert such share, pursuant to the
optional conversion provisions hereof, into the number and kind of shares of
stock or other securities and the amount and kind of property receivable upon
such Transaction by a holder of the number of shares of Common Stock issuable
upon conversion of such share of Series A Preferred Stock immediately prior to
such Transaction. The Corporation shall not be party to any Transaction unless
the terms of such Transaction are consistent with the provisions of this Section
4.6(vi), and it shall not consent to or agree to the occurrence of any
Transaction until the Corporation has entered into an agreement with the
successor or purchasing entity, as the case may be, for the benefit of the
holders of the Series A Preferred Stock, thereby enabling
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<PAGE>
the holders of the Series A Preferred Stock to receive the benefits of this
Section 4.6(vi) and the other provisions of these Articles Supplementary.
Without limiting the generality of the foregoing, provision shall be made for
adjustments in the Conversion Ratio which shall be as nearly equivalent as may
be practicable to the adjustments provided for in Section 4.6(i). The
provisions of this Section 4.6(vi) shall similarly apply to successive
Transactions.
(vii) In the event that the Corporation shall propose to
effect any Transaction which would result in an adjustment under Section
4.6(vi), the Corporation shall cause to be mailed to the holders of record of
Series A Preferred Stock at least 20 days prior to the applicable date
hereinafter specified a notice stating the date on which such Transaction is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such Transaction.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such Transaction.
4.7 OTHER.
(i) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Common Stock the maximum number of
shares of Common Stock issuable upon the conversion of all shares of Series A
Preferred Stock then outstanding, and if at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series A Preferred Stock, in
addition to such other remedies as shall be available to the holder of such
Series A Preferred Stock, the Corporation shall take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purposes.
(ii) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares of
Series A Preferred Stock, but the Corporation shall not be required to pay any
taxes which may be payable in respect of any transfer of shares of Series A
Preferred Stock or any transfer involved in the issuance of shares of Common
Stock in a name other than that in which the shares of Series A Preferred Stock
so converted are registered, and the Corporation shall not be required to
transfer any such shares of Series A Preferred Stock or to issue or deliver any
such shares of Common Stock unless and until the person(s) requesting such
transfer or issuance shall have paid to the Corporation the amount of any such
taxes, or shall have established to the satisfaction of the Corporation that
such taxes have been paid.
(iii) The Corporation will not, by amendment of the Articles
of Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Corporation, but
will at all times in good faith assist in carrying out of all the provisions of
these Articles Supplementary and in the taking of all such action as may be
necessary or
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<PAGE>
appropriate to protect the conversion rights of the holders of the Series A
Preferred Stock against impairment.
(iv) Holders of Series A Preferred Stock shall be entitled to
receive copies of all communications by the Corporation to its holders of Common
Stock, concurrently with the distribution to such shareholders.
(v) The Corporation warrants that all Common Stock issued upon
conversion of shares of Series A Preferred Stock will upon issue be fully paid
and nonassessable by the Corporation and free from original issue taxes.
(5) VOTING RIGHTS. The holders of record of Series A Preferred Stock
shall not be entitled to vote on any matter on which the holders of record of
Common Stock are entitled to vote, except that the holders of a majority of the
Series A Preferred Stock, voting as a separate class, shall be required to vote
on and approve: (a) any material adverse change in the rights, preferences or
privileges of the Series A Preferred Stock, and (b) any creation of a new class
of stock having rights, preferences or privileges senior to or in parity with
the rights, preferences or privileges of the Series A Preferred Stock.
(6) REACQUIRED SHARES. Shares of Series A Preferred Stock converted,
redeemed or otherwise purchased or acquired by the Corporation shall be restored
to the status of authorized but unissued shares of preferred stock without
designation as to series.
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<PAGE>
IN WlTNESS WHEREOF, the Corporation has caused these presents to be signed
in its name and on its behalf by its President and witnessed by its Secretary on
September 21st, 1995.
WITNESS: CENTERPOINT PROPERTIES
CORPORATION
/s/ Paul S. Fisher By: /s/ John S. Gates, Jr.
- ------------------------------- ---------------------------
Paul S. Fisher, Secretary John S. Gates, Jr., President
THE UNDERSIGNED, President of CenterPoint Properties Corporation, who
executed on behalf of the Corporation Articles Supplementary of which this
Certificate is made a part, hereby acknowledges in the name and on behalf of
said Corporation the foregoing Articles Supplementary to be the corporate act of
said Corporation and hereby certifies that the matters and facts set forth
herein with respect to the authorization and approval thereof are true in all
material respects under penalties of perjury.
/s/ John S. Gates, Jr.
------------------------------
John S. Gates, Jr., President
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<PAGE>
CENTERPOINT PROPERTIES CORPORATION
ARTICLES OF AMENDMENT
CENTERPOINT PROPERTIES CORPORATION a Maryland corporation, having its
principal office in Baltimore City, Maryland (which is hereinafter called the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The Charter of the Corporation is hereby amended as follows:
(a) Article V, Section I of the Charter of the Corporation is
hereby amended in its entirety to read as follows:
Section 1. Authorized Shares. The total number of shares of
stock which the Corporation has authority to issue is 60,000,000
shares, of which 40,000,000 are shares of Common Stock, par value
$.001 per share ("Common Stock"), 10,000,000 are shares of Class B
Common Stock, par value $.001 per share ("Class B Common Stock") and
10,000,000 are shares of Series Preferred Stock, par value $.001 per
share ("Preferred Stock"). The aggregate par value of all authorized
shares of stock having par value is $60,000.
(b) Article V is further amended by adding a new section 3 to
read as follows:
Section 3. CLASS B COMMON STOCK. The Class B Common Stock shall
have the following rights:
(1) Dividend Rights.
(a) The holders of record of outstanding shares of Class
B Common Stock shall be entitled to receive, when and as declared
by the Board of Directors, out of funds legally available therefor,
cash dividends which are payable when, as and if authorized by the
Board of Directors, PARI PASSU with any dividends paid on the
Corporation's Common Stock, in an amount per share equal to the
Class B Common Stock Common Dividend Amount, as in effect from time
to time. The initial per share Class B Common Stock Common
Dividend Amount per annum shall be equal to $__________.(1) Each
calendar quarter hereafter (or, if the date of original issuance of
the Class B Common Stock (the "Original Issue Date") is not on the
first day of a calendar quarter, the period beginning on the
Original Issue Date and ending on the last day of the calendar
quarter of issuance) is referred to hereinafter as a "Dividend
Period." The amount of dividends payable with respect to each full
dividend period for the Class B Common Stock shall be computed by
dividing the Class B Common Stock Common Dividend
<PAGE>
Amount by four. The amount of dividends on the Class B Common Stock
payable with respect to the initial Dividend Period, or any other
Dividend Period shorter or longer than a full Dividend Period shall be
computed ratably on the basis of the actual number of days in such
Dividend Period. In the event of any change in the quarterly cash
dividend per share applicable to the Common Stock after the date of
these Articles of Amendment, the quarterly cash dividend per share of
the Class B Common Stock shall be adjusted for the same dividend
period by an amount computed by multiplying the amount of the change
in the Common Stock dividend by the Conversion Ratio (as defined in
Section 3.2).
(b) In the event the Corporation shall declare a
distribution payable in (i) securities of other persons, (ii)
evidences of indebtedness issued by the Corporation or other persons,
(iii) assets (excluding cash dividends) or (iv) options or rights to
purchase capital stock or evidences of indebtedness in the Corporation
or other persons, then, in each such case for the purpose of this
Section 3(1), the holders of the Class B Common Stock shall be
entitled to a proportionate share of any such distribution as though
they were the holders of the number of shares of Common Stock of the
Corporation into which their shares of Class B Common Stock are or
would be convertible (assuming such shares of Class B Common Stock
were then convertible) as of the record date fixed for determination
of the holders of Common Stock of the Corporation entitled to receive
such distribution.
(2) Liquidation Rights.
(a) Subject to any prior rights of any other class or series of
stock, the holders of Class B Common Stock shall be entitled to
receive the remaining assets of the Corporation available for
distribution pro rata with the other holders of shares of capital
stock of the Corporation as though they were the holders of the number
of shares of Common Stock of the Corporation into which their shares
of Class B Common Stock are or would be convertible (assuming such
shares of Class B Common Stock were then convertible) as of the record
date applicable to such distribution
(b) Neither a consolidation or merger of the Corporation with or
into any other corporation, nor a merger of any other corporation into
the Corporation, nor the purchase or redemption of all or part of the
outstanding shares of any class or classes of stock of the
Corporation, nor a sale or transfer of all or any part of its assets,
shall be considered a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section 3(2).
(3) Conversion Rights.
3.1 MANDATORY CONVERSION INTO COMMON STOCK
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<PAGE>
(a) Beginning on September 30, 1998, and at the end of each calendar
quarter thereafter, such number of shares of Class B Common Stock will
mandatorily convert into such number of shares of Common Stock as will
result in the holders of the Class B Common Stock owning, in the aggregate,
4.9% of the then outstanding shares of Common Stock; and if on any such
date the total number of outstanding shares of Class B Common Stock would
not, upon conversion, result in the holders thereof owning, in the
aggregate, 4.9% of the then outstanding shares of Common Stock, then all
such outstanding shares of Class B Common Stock will mandatorily convert
into Common Stock. The Company will notify the Investor in writing at
least five (5) business days prior to the end of each calendar quarter as
to the number of shares of Class B Common Stock subject to mandatory
conversion, which number will be revised, if necessary, as a result of
intervening events, no later than two (2) business days after the end of
the applicable quarter.
(b) On the tenth anniversary of the Original Issue Date, each
remaining share of Class B Common Stock which has not been converted to
Common Stock shall mandatorily convert to that number of fully paid and
nonassessable shares of Common Stock equal to the Conversion Ratio, as
adjusted, regardless of the 4.9% limitation described in Section 3.1(a)
above.
(c) The Corporation shall make such arrangements as it deems
appropriate for the issuance as soon as practicable of certificates
representing shares of Common Stock issued upon the mandatory conversion of
the Class B Common Stock in exchange for and contingent upon surrender by
the holder of the certificates(s) representing such holder's shares of
Class B Common Stock. From and after the date of mandatory conversion,
certificates representing shares of Class B Common Stock shall be deemed to
represent an equal number of shares of Common Stock.
3.2 RIGHT TO CONVERT.
Beginning on September 21, 1998, the holders of shares of
Class B Common Stock shall have the right, at their option, to convert each
such share, at any time and from time to time, into one fully paid and
nonassessable share of Common Stock (the "Conversion Ratio", which is
subject to adjustment as provided below); PROVIDED, HOWEVER, that no holder
of Class B Common Stock shall be entitled to convert shares of such Class B
Common Stock into Common Stock pursuant to the foregoing provision, if, as
a result of such conversion, such person would become the Beneficial Owner
of more than 4.9% of the Corporation's outstanding Common Stock.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Securities Exchange Act of 1934 (or any successor provision thereto).
Notwithstanding the foregoing, the forgoing conversion right may be
exercised at any time after the date of these Articles of Amendment and
irrespective of the 4.9% limitation (and no such limit shall apply) if any
of the following circumstances occurs:
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<PAGE>
(i) For any two consecutive fiscal quarters, the aggregate
amount outstanding as of the end of the quarter under (1) all mortgage
indebtedness of the Corporation and its consolidated entities and (2)
unsecured indebtedness of the Corporation and its consolidated entities for
money borrowed that has not been made generally subordinate to the other
indebtedness for borrowed money of the Corporation or any consolidated
entity exceeds fifty-five percent (55%) of the Corporation's total market
capitalization, defined as the market value of all of the Corporation's
outstanding capital stock, assuming the conversion of all outstanding
convertible securities, including the Class B Common Stock plus the amount
of the Company's total non-convertible indebtedness (all as such items of
indebtedness and capitalization are reported in consolidated financial
statements contained in the Corporation's Form 10-Ks and Form 10-Qs as
filed with the Securities and Exchange Commission); or
(ii) Fewer than three of John S. Gates, Jr., Robert M.
Stovall, Michael M. Mullen and Paul S. Fisher are continuing as Key
Managers of the Company. (For purposes of this subparagraph (ii), a "Key
Manager" shall mean a Person who is (a) employed by the Company and (b)
actively participates as a senior executive officer in the management of
the Company.); or
(iii) If (A) the Corporation shall be party to, or shall
have announced or entered into an agreement for, any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange or sale of all or substantially all of its assets (each of the
foregoing a "Transaction")), in each case as a result of which shares of
Common Stock shall have been or will be converted into the right to receive
stock, securities or other property (including cash or any combination
thereof) or which has resulted or will result in the holders of Common
Stock immediately prior to the Transaction owning less than 50% of the
Common Stock after the Transaction, or (b) a "change of control" as defined
in the next sentence occurs with respect to the Corporation. A change of
control shall mean the acquisition (including by virtue of a merger, share
exchange or other business combination) by one stockholder or a group of
stockholders acting in concert of the power to elect a majority of the
Corporation's board of directors. The Corporation shall notify the holders
of Class B Common Stock promptly if any of the events listed in this
Section 3.2(iii) shall occur.
3.3 The Corporation shall make such arrangements as it deems
appropriate for the issuance as soon as practicable of certificates
representing shares of Common Stock issued upon the mandatory conversion of
the Class B Common Stock in exchange for and contingent upon surrender by
the holder of the certificate(s) representing such holder's shares of Class
B Common Stock. From and after the date of mandatory conversion,
certificates representing shares of Class B Common Stock shall be deemed to
represent an equal number of shares of Common Stock.
3.4 PROCEDURE FOR CONVERSION. In order to exercise its right to
convert shares of Class B Common Stock into Common Stock pursuant to
Section 3.2 above, the holder thereof shall surrender the certificate(s)
therefor, duly endorsed if the Corporation
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<PAGE>
shall so require, or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of any transfer agent for
the Class B Common Stock, or if there is no such transfer agent, at the
principal offices of the Corporation, or at such other office as may be
designated by the Corporation, together with written notice that such
holder elects to convert such shares. Such notice shall also state the
name(s) and address(es) in which such holder wishes the certificate(s) for
the shares of Common Stock issuable upon conversion to be issued. As soon
as practicable after an optional conversion, the Corporation shall issue
and deliver at said office a certificate or certificates for the number of
whole shares of Common Stock issuable upon conversion of the shares of
Class B Common Stock duly surrendered for conversion, to the person(s)
entitled to receive the same. Shares of Class B common Stock shall be
deemed to have been converted immediately prior to the close of business on
the date on which the certificates therefor and notice of election to
convert the same are duly received by the Corporation in accordance with
the foregoing provisions, and the person(s) entitled to receive the Common
Stock issuable upon such conversion shall be deemed for all purposes as
record holder(s) of such Common Stock as of the close of business on such
date.
3.5 NO FRACTIONAL SHARES. No fractional shares shall be issued
upon conversion of the Class B Common Stock into Common Stock, and the
number of shares of Common Stock to be issued shall be rounded to the
nearest whole share. Whether or not fractional shares would be issuable
upon such conversion shall be determined on the basis of the total number
of shares of Class B Common Stock the holder is at the time converting into
Common Stock and the number of shares of Common Stock issuable upon such
aggregate conversion. As to any final fraction of a share which the holder
of one or more shares of Class B Common Stock would be entitled to receive
upon exercise of his conversion right, the Corporation shall pay a cash
adjustment in an amount equal to the same fraction of the last sale price
(or bid price if there were no sales) per share of Common Stock on the
American Stock Exchange on the business day which next precedes the
conversion date or, if such Common Stock is not then listed or admitted to
trading on such Exchange, on any national securities exchange, of the
market price per share (as determined in a manner prescribed by the Board
of Directors of the Corporation) at the close of business on the business
day which next precedes the conversion date.
3.6 ADJUSTMENTS.
(i) The Conversion Ration shall be subject to adjustment as follows:
(A) In the event the Corporation shall at any time (i) pay
a dividend or make a distribution to holders of Common Stock in shares of
capital stock, (ii) subdivide its outstanding shares of Common Stock into a
larger number of shares, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares, or (iv) issue by reclassification of
its shares of Common Stock any shares of the Corporation, the Conversion
Ratio in effect immediately prior thereto shall be adjusted as provided
below
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<PAGE>
so that the holder of any share of Class B Common Stock thereafter
surrendered for conversion shall be entitled to receive the number of
shares of the Corporation which such holder would have owned or have been
entitled to receive after the happening of any of the events described
above, had such share of Class B Common Stock been converted immediately
prior to the happening of such event. Any adjustment made pursuant to this
subparagraph (a) shall become effective retroactively immediately after the
record date in the case of a dividend and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification.
(B) In case the Corporation shall issue rights or warrants
to all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price (as hereinafter defined) per share of Common Stock at the
record date mentioned below, the number of shares of Common Stock into
which each share of Class B Common Stock shall thereafter be convertible
shall be determined by multiplying the number of shares of Common Stock
into which such share of Class B Common Stock was therefore convertible by
a fraction, of which the numerator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants plus
the number of additional shares of Common Stock offered for subscription or
purchase, and of which the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such current market price.
Such adjustment shall be made whenever such rights or warrants are issued,
and shall become effective retroactively immediately after the record date
for the determination of stockholders entitled to receive such rights or
warrants.
(C) In case the Corporation shall distribute to all holders
of its Common Stock evidences of its indebtedness or assets or rights or
warrants to subscribe for or purchase securities issued by the Corporation
or property of the Corporation (excluding those referred to in subparagraph
(b) above), then in each such case the number of shares of Common Stock
into which each share of Class B Common Stock shall thereafter be
convertible shall be determined by multiplying the number of shares of
Common Stock into which such shares of Class B Common Stock was theretofore
convertible by a fraction, of which the numerator shall be the current
market price per share of the Common Stock, and of which the denominator
shall be such current market price per share of Common Stock, less the then
fair market value (as determined by the Board of Directors of the
Corporation, whose determination shall be conclusive) of the portion of the
assets or evidence of indebtedness so distributed or of such rights or
warrants applicable to one share of the Common Stock. Such adjustment
shall be made whenever any such distribution is made, and shall become
effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such distribution.
(D) If any such rights or warrants referred to above shall
expire without having been exercised, the Conversion Ratio as theretofore
adjusted because of
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<PAGE>
the issue of such rights or warrants shall forthwith be readjusted to the
Conversion Ratio which would have been in effect had an adjustment been
made on the basis that only the rights or warrants so issued or sold were
those rights or warrants actually exercised and that with respect to any
such rights or warrants to subscribe for or purchase securities issued by
the Corporation, other than Common Stock or property of the Corporation,
the fair market value thereof shall be the fair market value of the rights
or warrants actually exercised. If any such rights or warrants shall
expire without having been exercised, the Conversion Ratio as theretofore
adjusted because of the issue of such rights or warrants shall forthwith be
readjusted to the Conversion Ratio which would have been in effect had an
adjustment been made on the basis that the only rights or warrants, so
issued or sold, were those rights or warrants actually exercised and that
with respect to any such rights or warrants to subscribe for or purchase
securities issued by the Corporation, other than Common Stock, or property
of the Corporation the fair market value thereof shall be the fair market
value of the rights or warrants actually exercised.
For the purpose of any computation under this paragraph (i) the
current market price per share of Common Stock at any date shall be deemed
to be the average of the daily closing prices for the 15 consecutive
business days commencing 30 business days before the day in question. The
closing price for each day shall be the last reported sale price regular
way or, in the case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either
case on the American Stock Exchange, or, if the Common Stock is noted
listed or admitted to trading on such Exchange, on any national securities
exchange, designated by the Board of Directors, on which the Common Stock
is listed or admitted to trading, or if not listed or admitted to trading
on any national securities exchange, the average of the closing bid and
asked prices as furnished by any American Stock Exchange or New York Stock
Exchange firm selected from time to time by the Corporation for the
purposes.
All calculations under this paragraph (i) shall be made to the nearest
cent or to the nearest 1/100th of a share as the case may be.
(ii) No adjustment of the Conversion Ratio shall be made as a
result of or in connection with the issuance of Common Stock of the
Corporation pursuant to options or stock purchase agreements now or
hereafter granted or entered into with directors, officers or employees of
the Corporation or its subsidiaries in connection with their employment,
whether entered into at the beginning of the employment or at any time
thereafter.
(iii) In case of:
(A) any capital reorganization of the Corporation, or
(B) the consolidation or merger of the Corporation with or into
another corporation, or
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(C) a statutory share exchange whereby the Corporation's Common Stock
is converted into property other than cash, or
(D) the sale, transfer or other disposition of all or substantially
all of the property, assets or business of the Corporation as a result of
which sale, transfer or other disposition property other than cash shall be
payable or distributable to the holders of the Common Stock, then, in each
such case, each share of Class B Common Stock shall thereafter be
convertible into the number and class of shares or other securities or
property of the Corporation, or of the Corporation resulting from such
consolidation or merger or with or to which such statutory share exchange,
sale, transfer or other disposition shall have been made, to which the
Common Stock otherwise issuable upon conversion of such share of Class B
Common Stock would have been entitled upon such reorganization,
consolidation, merger, statutory share exchange, or sale, transfer or other
disposition if outstanding at the time thereof; and in any such case
appropriate adjustment, as determined by the Board of Directors, shall be
made in the application of the provisions set forth in this Section 3.6
with respect to the conversion rights thereafter of the holders of the
Class B Common Stock, to the end that such provisions shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares or
securities or other property thereafter issuable or deliverable upon the
conversion of Class B Common Stock. Proper provision shall be made as a
part of the terms of any such reorganization, consolidation, merger,
statutory share exchange or sale, transfer or other disposition whereby the
conversion rights of the holders of Class B Common Stock shall be protected
and preserved in accordance with the provisions of this paragraph (iii).
The provisions of this paragraph (iii) shall similarly apply to successive
capital reorganizations, consolidations, mergers, statutory share
exchanges, sales, transfers or other dispositions of property as aforesaid.
(iv) Upon conversion of any shares of Class B Common Stock, no
payment or adjustment shall be made on account of dividends accrued,
whether or not in arrears, on such shares or on account of dividends
declared and payable to holders of Common Stock of record on a date prior
to the date of conversion.
(v) Whenever the conversion Ratio shall be adjusted as herein
provided, the Corporation shall cause to be mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record of shares
of Class B Common Stock a notice stating that the Conversion Ratio has been
adjusted and setting forth the adjusted Conversion Ratio, together with an
explanation of the calculation of the same.
(vi) If the Corporation shall be party to any Transaction in each
case as a result of which shares of Common Stock shall be converted into
the right to receive stock, securities or other property (including cash or
any combination thereof), the holder of each share of Class B Common Stock
shall have the right after such Transaction to convert such share, pursuant
to the optional conversion provisions hereof, into the number and kind of
shares of stock or other securities and the amount and kind of property
receivable upon such Transaction by a holder of the number of shares of
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Common Stock issuable upon conversion of such share of Class B Common Stock
immediately prior to such Transaction. The Corporation shall not be party
to any Transaction unless the terms of such Transaction are consistent with
the provisions of this Section 3.6(vi), and it shall not consent to or
agree to the occurrence of any Transaction until the Corporation has
entered into an agreement with the successor or purchasing entity, as the
case may be, for the benefit of the holders of the Class B Common Stock,
thereby enabling the holders of the Class B Common Stock to receive the
benefits of this Section 3.6(vi) and the other provisions of these Articles
of Amendment. Without limiting the generality of the foregoing, provisions
shall be made for adjustments in the Conversion Ratio which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
Section 3.6(i). The provisions of this Section 3.6(vi) shall similarly
apply to successive Transactions.
(vii) In the event that the Corporation shall propose to
effect any Transaction which would result in an adjustment under Section
3.6(vi), the Corporation shall cause to be mailed to the holders of record
of Class B Common Stock at least 20 days prior to the applicable date
hereinafter specified a notice stating the date on which such Transaction
is expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon
such Transaction. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such Transaction.
3.7 OTHER.
(i) The Corporation shall at al times reserve and keep available
out of its authorized but unissued Common Stock the maximum number of
shares of Common Stock issuable upon the conversion of all shares of Class
B Common Stock then outstanding, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of Class B Common
Stock, in addition to such other remedies as shall be available to the
holder of such Class B Common Stock, the Corporation shall take such
corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number
of shares as shall be sufficient for such purposes.
(ii) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares
of Class B Common Stock, but the Corporation shall not be required to pay
any taxes which may be payable in respect of any transfer of shares of
Class B Common Stock or any transfer involved in the issuance of shares of
Common Stock in a name other than that in which the shares of Class B
Common Stock so converted are registered, and the Corporation shall not be
required to transfer any such shares of Class B Common Stock or to issue or
deliver any such shares of Common Stock unless and until the person(s)
requesting such transfer or issuance shall have paid to the Corporation the
amount of any such taxes, or
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<PAGE>
shall have established to the satisfaction of the Corporation that such
taxes have been paid.
(iii) The Corporation will not, by amendment of the Articles
of Incorporation or through any reorganization, recapitalization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Corporation, but will at all times in good faith assist in carrying out
of all the provisions of these Articles of Amendment and in the taking of
all such action as may be necessary or appropriate to protect the
conversion rights of the holders of the Class B Common Stock against
impairment.
(iv) Holders of Class B Common Stock shall be entitled to receive
copies of all communications by the Corporation to its holders of Common
Stock, concurrently with the distribution to such shareholders.
(v) The Corporation warrants that all Common Stock issued upon
conversion of shares of Class B Common Stock will upon issue be fully paid
and nonassessable by the Corporation and free from original issue taxes.
(5) Voting Rights. The holders of record of Class B Common Stock
shall not be entitled to vote on any matter on which the holders of record
of Common Stock are entitled to vote, except that the holders of a majority
of the Class B Common Stock, voting as a separate class, shall be required
to vote on and approve: (a) any material adverse change in the rights,
preferences or privileges of the Class B Common Stock, and (b) any creation
of a new class of stock having rights, preferences or privileges senior to
or in parity with the rights, preferences or privileges of the Class B
Common Stock.
(6) Reacquired Shares. Shares of Class B Common Stock converted,
redeemed or otherwise purchased or acquired by the Corporation shall be
restored to the status of authorized but unissued shares of preferred stock
without designation as to series.
SECOND: The amendment does not increase the authorized stock of the
Corporation.
THIRD: The foregoing amendment to the Charter of the Corporation has been
advised by the Board of Directors and approved by the stockholders of the
Corporation.
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IN WITNESS WHEREOF, CenterPoint Properties Corporation has caused these
presents to be signed in its name and on its behalf by its President and
witnessed by its Secretary on ___________________, 1995.
WITNESS: CENTERPOINT PROPERTIES
CORPORATION
By:
- ------------------------------ ------------------------------
Secretary President
THE UNDERSIGNED, President of CenterPoint Properties Corporation, who
executed on behalf of the Corporation the foregoing Articles of Amendment of
which this certificate is made a part, hereby acknowledges in the name and on
behalf of said Corporation the foregoing Articles of Amendment to be the
corporate act of said Corporation and hereby certifies that to the best of his
knowledge, information, and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
-----------------------------------
President
- --------------------
I This number will be filled in before these Articles are filed and will
equal the Series A Preferred Stock Dividend Amount as of the conversion date of
the Series A Preferred Stock into Class B Common Stock.
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<PAGE>
CENTERPOINT PROPERTIES CORPORATION
ARTICLES OF AMENDMENT
CENTERPOINT PROPERTIES CORPORATION, a Maryland corporation (the
"Corporation"), having its principal office in Chicago, Illinois, hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The Charter of the Corporation is hereby amended as follows:
(a) Article V, Section 1 of the Charter of the Corporation is hereby
amended in its entirety to read as follows:
Section 1. AUTHORIZED SHARES. The total number of shares of stock
which the Corporation has authority to issue is 60,000,000 shares, of which
47,727,273 are shares of Common Stock, par value $.001 per share ("Common
Stock"), 2,272,727 are shares of Class B Common Stock, par value $.001 per
share ("Class B Common Stock") and 10,000,000 are shares of Series
Preferred Stock, par value $.001 per share ("Preferred Stock"). The
aggregate par value of all authorized shares of stock having par value is
$60,000.
(b) Article V is further amended by adding a new section 5 to read as
follows:
Section 3. CLASS B COMMON STOCK. The Class B Common Stock shall
have the following rights:
(1) Dividend Rights.
(a) The holders of record of outstanding shares of Class B
Common Stock shall be entitled to receive, when and as declared by the
Board of Directors, out of funds legally available therefor, cash dividends
which are payable when, as and if authorized by the Board of Directors,
PARI PASSU with any dividends paid on the Corporation's Common Stock, in an
amount per share equal to the Class B Common Stock Common Dividend Amount,
as in effect from time to time. The initial per share Class B Common Stock
Common Dividend Amount per annum shall be equal to $1.6068. Each calendar
quarter hereafter (or, if the date of original issuance of the Class B
Common Stock (the "Original Issue Date") is not on the first day of a
calendar quarter, the period beginning on the Original Issue Date and
ending on the last day of the calendar quarter of issuance) is referred to
hereinafter as a "Dividend Period." The amount of dividends payable with
respect to each full dividend period for the Class B Common Stock shall be
computed by dividing the Class B Common Stock Common Dividend Amount by
four. The amount of dividends on the Class B Common Stock
<PAGE>
payable with respect to the initial Dividend Period, or any other Dividend
Period shorter or longer than a full Dividend Period shall be computed
ratably on the basis of the actual number of days in such Dividend Period.
In the event of any change in the quarterly cash dividend per share
applicable to the Common Stock after the date of these Articles of
Amendment, the quarterly cash dividend per share of the Class B Common
Stock shall be adjusted for the same dividend period by an amount computed
by multiplying the amount of the change in the Common Stock dividend by the
Conversion Ratio (as defined in Section 3.2).
(b) In the event the Corporation shall declare a
distribution payable in (i) securities of other persons, (ii) evidences of
indebtedness issued by the Corporation or other persons, (iii) assets
(excluding cash dividends) or (iv) options or rights to purchase capital
stock or evidences of indebtedness in the Corporation or other persons,
then, in each such case for the purpose of this Section 3(1), the holders
of the Class B Common Stock shall be entitled to a proportionate share of
any such distribution as though they were the holders of the number of
shares of Common Stock of the Corporation into which their shares of Class
B Common Stock are or would be convertible (assuming such shares of Class B
Common Stock were then convertible) as of the record date fixed for
determination of the holders of Common Stock of the Corporation entitled to
receive such distribution.
(2) Liquidation Rights.
(a) Subject to any prior rights of any other class or
series of stock, the holders of Class B Common Stock shall be entitled to
receive the remaining assets of the Corporation available for distribution
pro rata with the other holders of shares of capital stock of the
Corporation as though they were the holders of the number of shares of
Common Stock of the Corporation into which their shares of Class B Common
Stock are or would be convertible (assuming such shares of Class B Common
Stock were then convertible) as of the record date applicable to such
distribution.
(b) Neither a consolidation or merger of the Corporation
with or into any other corporation, nor a merger of any other corporation
into the Corporation, nor the purchase or redemption of all or part of the
outstanding shares of any class or classes of stock of the Corporation, nor
a sale or transfer of all or any part of its assets, shall be considered a
liquidation, dissolution or winding up of the Corporation within the
meaning of this Section 3(2).
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<PAGE>
(3) Conversation Rights.
3.1 MANDATORY CONVERSION INTO COMMON STOCK.
(a) Beginning on September 30, 1998, and at the end of each
calendar quarter thereafter, such number of shares of Class B Common Stock
will mandatorily convert into such number of shares of Common Stock as will
result in the holders of the Class B Common Stock owning, in the aggregate,
4.9% of the then outstanding shares of Common Stock; and if on any such
date the total number of outstanding shares of Class B Common Stock would
not, upon conversion, result in the holders thereof owning, in the
aggregate, 4.9% of the then outstanding shares of Common Stock, then all
such outstanding shares of Class B Common Stock will mandatorily convert
into Common Stock. The Company will notify the Investor in writing at
least five (5) business days prior to the end of each calendar quarter as
to the number of shares of Class B Common Stock subject to mandatory
conversion, which number will be revised, if necessary, as a result of
intervening events, no later than two (2) business days after the end of
the applicable quarter.
(b) On the tenth anniversary of the Original Issue Date,
each remaining share of Class B Common Stock which has not been converted
to Common Stock shall mandatorily convert to that number of fully paid and
nonassessable shares of Common Stock equal to the Conversion Ratio, as
adjusted, regardless of the 4.9% limitation described in Section 3.1(a)
above.
(c) The Corporation shall make such arrangements as it
deems appropriate for the issuance as soon as practicable of certificates
representing shares of Common Stock issued upon the mandatory conversion of
the Class B Common Stock in exchange for and contingent upon surrender by
the holder of the certificate(s) representing such holder's shares of Class
B Common Stock. From and after the date of mandatory conversion,
certificates representing shares of Class B Common Stock shall be deemed to
represent an equal number of shares of Common Stock.
3.2 RIGHT TO CONVERT.
Beginning on September 21, 1998, the holders of shares of
Class B Common Stock shall have the right, at their option, to convert each
such share, at any time and from time to time, into one fully paid and
nonassessable share of Common Stock (the "Conversion Ratio," which is
subject to adjustment as provided below); PROVIDED, HOWEVER, that no holder
f Class B Common Stock shall be entitled to convert shares of
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<PAGE>
such Class B Common Stock into Common Stock pursuant to the foregoing
provision, if, as a result of such conversion, such person would become the
Beneficial Owner of more than 4.9% of the Corporation's outstanding Common
Stock. "Beneficial Owner" shall have the meaning set forth in Rule 13d-3
under the Securities and Exchange Act of 1934 (or any successor provision
thereto). Notwithstanding the foregoing, the foregoing conversion right
may be exercised at any time after the date of these Articles of Amendment
and irrespective of the 4.9% limitation (and no such limit shall apply) if
any of the following circumstances occurs:
(i) For any two consecutive fiscal quarters, the aggregate
amount outstanding as of the end of the quarter under (1) all mortgage
indebtedness of the Corporation and its consolidated entities and (2)
unsecured indebtedness of the Corporation and its consolidated
entities for money borrowed that has not been made generally
subordinate to the other indebtedness for borrowed money of the
Corporation or any consolidated entity exceeds fifty-five percent
(55%) of the Corporation's total market capitalization, defined as the
market value of all of the Corporation's outstanding capital stock,
assuming the conversion of all outstanding convertible securities,
including the Class B Common Stock plus the amount of the Company's
total non-convertible indebtedness (all as such items of indebtedness
and capitalization are reported in consolidated financial statements
contained in the Corporation's Form 10-Ks and Form 10-Qs as filed with
the Securities and Exchange Commission); or
(ii) Fewer than three of John S. Gates, Jr., Robert M.
Stovall, Michael M. Mullen and Paul S. Fisher are continuing as Key
Managers of the Company. (For purposes of this subparagraph (ii), a
"Key Manager" shall mean a Person who is (a) employed by the Company
and (b) actively participates as a senior executive officer in the
management of the Company); or
(iii) If (A) the Corporation shall be party to, or shall
have announced or entered into an agreement for, any transaction
(including, without limitation, a merger, consolidation, statutory
share exchange or sale of all or substantially all of its assets (each
of the foregoing a "Transaction")), in each case as a result of which
shares of Common Stock shall have been or will be converted into the
right to receive stock, securities or other property (including cash
or any combination thereof) or which has resulted or will result in
the holders of Common Stock immediately prior to the Transaction
owning less than 50% of the Common Stock after the Transaction, or (b)
a "change of control"
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<PAGE>
as defined in the next sentence occurs with respect to the
Corporation. A change of control shall mean the acquisition
(including by virtue of a merger, share exchange or other business
combination) by one stockholder or a group of stockholders acting in
concert of the power to elect a majority of the Corporation's board of
directors. The Corporation shall notify the holders of Class B Common
Stock promptly if any of the events listed in this Section 3.2(iii)
shall occur.
3.3 The Corporation shall make such arrangements as it deems
appropriate for the issuance as soon as practicable of certificates
representing shares of Common Stock issued upon the mandatory conversion of
the Class B Common Stock in exchange for and contingent upon surrender by
the holder of the certificate(s) representing such holder's shares of Class
B Common Stock. From and after the date of mandatory conversion,
certificates representing shares of Class B Common Stock shall be deemed to
represent an equal number of shares of Common Stock.
3.4 PROCEDURE FOR CONVERSION. In order to exercise its right to
convert shares of Class B Common Stock into Common Stock pursuant to
Section 3.2 above, the holder thereof shall surrender the certificate(s)
therefor, duly endorsed if the Corporation shall so require, or accompanied
by appropriate instruments of transfer satisfactory to the Corporation, at
the office of any transfer agent for the Class B Common Stock, or if there
is no such transfer agent, at the principal offices of the Corporation, or
at such other office as may be designated by the Corporation, together with
written notice that such holder elects to convert such shares. Such notice
shall also state the name(s) and address(es) in which such holder wishes
the certificate(s) for the shares of Common Stock issuable upon conversion
to be issued. As soon as practicable after an optional conversion, the
Corporation shall issue and deliver at said office a certificate or
certificates for the number of whole shares of Common Stock issuable upon
conversion of the shares of Class B Common Stock duly surrendered for
conversion, to the person(s) entitled to receive the same. Shares of Class
B Common Stock shall be deemed to have been converted immediately prior to
the close of business on the date on which the certificates therefor and
notice of election to convert the same are duly received by the Corporation
in accordance with the foregoing provisions, and the person(s) entitled to
receive the Common Stock issuable upon such conversion shall be deemed for
all purposes as record holder(s) of such Common Stock as of the close of
business on such date.
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<PAGE>
3.5 NO FRACTIONAL SHARES. No fractional shares shall be issued
upon conversion of the Class B Common Stock into Common Stock, and the
number of shares of Common Stock to be issued shall be rounded to the
nearest whole share. Whether or not fractional shares would be issuable
upon such conversion shall be determined on the basis of the total number
of shares of Class B Common Stock the holder is at the time converting into
Common Stock and the number of shares of Common Stock issuable upon such
aggregate conversion. As to any final fraction of a share which the holder
of one or more shares of Class B Common Stock would be entitled to receive
upon exercise of his conversion right, the Corporation shall pay a cash
adjustment in an amount equal to the same fraction of the last sale price
(or bid price if there were no sales) per share of Common Stock on the
American Stock Exchange on the business day which next precedes the
conversion date or, if such Common Stock is not then listed or admitted to
trading on such Exchange, on any national securities exchange, of the
market price per share (as determined in a manner prescribed by the Board
of Directors of the Corporation) at the close of business on the business
day which next precedes the conversion date.
3.6 ADJUSTMENTS.
(i) The Conversion Ratio shall be subject to adjustment as
follows:
(A) In the event the Corporation shall at any time (i) pay
a dividend or make a distribution to holders of Common Stock in shares
of capital stock, (ii) subdivide its outstanding shares of Common
Stock into a larger number of shares, (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, or (iv) issue
by reclassification of its shares of Common Stock any shares of the
Corporation, the Conversion Ratio in effect immediately prior thereto
shall be adjusted as provided below so that the holder of any share of
Class B Common Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of the Corporation which such
holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such share of
Class B Common Stock been converted immediately prior to the happening
of such event. Any adjustment made pursuant to this subparagraph (a)
shall become effective retroactively immediately after the record date
in the case of a dividend and shall become
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effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
(B) In case the Corporation shall issue rights or warrants
to all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price (as hereinafter defined) per share of Common
Stock at the record date mentioned below, the number of shares of
Common Stock into which each share of Class B Common Stock shall
thereafter be convertible shall be determined by multiplying the
number of shares of Common Stock into which such share of Class B
Common Stock was therefore convertible by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding on
the date of issuance of such rights or warrants plus the number of
additional shares of Common Stock offered for subscription or
purchase, and of which the denominator shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered would purchase at such
current market price. Such adjustment shall be made whenever such
rights or warrants are issued, and shall become effective
retroactively immediately after the record date for the determination
of stockholders entitled to receive such rights or warrants.
(C) In case the Corporation shall distribute to all holders
of its Common Stock evidences of its indebtedness or assets or rights
or warrants to subscribe for or purchase securities issued by the
Corporation or property of the Corporation (excluding those referred
to in subparagraph (b) above), then in each such case the number of
shares of Common Stock into which each share of Class B Common Stock
shall thereafter be convertible shall be determined by multiplying the
number of shares of Common Stock into which such share of Class B
Common Stock was theretofore convertible by a fraction, of which the
numerator shall be the current market price per share of the Common
Stock, and of which the denominator shall be such current market price
per share of Common Stock, less the then fair market value (as
determined by the Board of Directors of the Corporation, whose
determination shall be conclusive) of the portion of the assets or
evidence of
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<PAGE>
indebtedness so distributed or of such rights or warrants applicable
to one share of the Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective
retroactively immediately after the record date for the determination
of stockholders entitled to receive such distribution.
(D) If any such rights or warrants referred to above shall
expire without having been exercised, the Conversion Ratio as
theretofore adjusted because of the issue of such rights or warrants
shall forthwith be readjusted to the Conversion Ratio which would have
been in effect had an adjustment been made on the basis that only the
rights or warrants so issued or sold were those rights or warrants
actually exercised and that with respect to any such rights or
warrants to subscribe for or purchase securities issued by the
Corporation, other than Common Stock or property of the Corporation,
the fair market value thereof shall be the fair market value of the
rights or warrants actually exercised. If any such rights or warrants
shall expire without having been exercised, the Conversion Ratio as
theretofore adjusted because of the issue of such rights or warrants
shall forthwith be readjusted to the Conversion Ratio which would have
been in effect had an adjustment been made on the basis that the only
rights or warrants, so issued or sold, were those rights or warrants
actually exercised and that with respect to any such rights or
warrants to subscribe for or purchase securities issued by the
Corporation, other than Common Stock, or property of the Corporation
the fair market value thereof shall be the fair market value of the
rights or warrants actually exercised.
For the purpose of any computation under this paragraph (i)
the current market price per share of Common Stock at any date shall
be deemed to be the average of the daily closing prices for the
fifteen (15) consecutive business days commencing thirty (30) business
days before the day in question. The closing price for each day shall
be the last reported sale price regular way or, in the case no such
reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the
American Stock Exchange, or, if the Common Stock is not listed or
admitted to trading on such Exchange, on any national securities
exchange, designated by the Board of Directors, on which the Common
Stock is listed or admitted to trading, or if not listed or admitted
to trading on any national securities exchange,
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<PAGE>
the average of the closing bid and asked prices as furnished by any
American Stock Exchange or New York Stock Exchange firm selected from
time to time by the Corporation for the purpose.
All calculations under this paragraph (i) shall be made to
the nearest cent or to the nearest 1/100th of a share as the case may
be.
(ii) No adjustment of the Conversion Ratio shall be made as a
result of or in connection with the issuance of Common Stock of the
Corporation pursuant to options or stock purchase agreements now or
hereafter granted or entered into with directors, officers or employees of
the Corporation or its subsidiaries in connection with their employment,
whether entered into at the beginning of the employment or at any time
thereafter.
(iii) In case of:
(A) any capital reorganization of the Corporation, or
(B) the consolidation or merger of the Corporation with or
into another corporation, or
(C) a statutory share exchange whereby the Corporation's
Common Stock is converted into property other than cash, or
(D) the sale, transfer or other disposition of all or
substantially all of the property, assets or business of the
Corporation as a result of which sale, transfer or other disposition
property other than cash shall be payable or distributable to the
holders of the Common Stock, then, in each such case, each share of
Class B Common Stock shall thereafter be convertible into the number
and class of shares or other securities or property of the
Corporation, or of the corporation resulting from such consolidation
or merger or with or to which such statutory share exchange, sale,
transfer or other disposition shall have been made, to which the
Common Stock otherwise issuable upon conversion of such share of Class
B Common Stock would
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<PAGE>
have been entitled upon such reorganization, consolidation, merger,
statutory share exchange, or sale, transfer or other disposition if
outstanding at the time thereof; and in any such case appropriate
adjustment, as determined by the Board of Directors, shall be made in
the application of the provisions set forth in this Section 3.6 with
respect to the conversion rights thereafter of the holders of the
Class B Common Stock, to the end that such provisions shall thereafter
be applicable, as nearly as reasonably may be, in relation to any
shares or securities or other property thereafter issuable or
deliverable upon the conversion of Class B Common Stock. Proper
provision shall be made as a part of the terms of any such
reorganization, consolidation, merger, statutory share exchange or
sale, transfer or other disposition whereby the conversion rights of
the holders of Class B Common Stock shall be protected and preserved
in accordance with the provisions of this paragraph (iii). The
provisions of this paragraph (iii) shall similarly apply to successive
capital reorganizations, consolidations, merger, statutory share
exchanges, sales, transfers or other dispositions of property as
aforesaid.
(iv) Upon conversion of any shares of Class B Common Stock, no
payment or adjustment shall be made on account of dividends accrued,
whether or not in arrears, on such shares or on account of dividends
declared and payable to holders of Common Stock of record on a date prior
to the date of conversion.
(v) Whenever the Conversion Ratio shall be adjusted as herein
provided, the Corporation shall cause to be mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record of shares
of Class B Common Stock a notice stating that the Conversion Ratio has been
adjusted and setting forth the adjusted Conversion Ratio, together with an
explanation of the calculation of the same.
(vi) If the Corporation shall be party to any Transaction in each
case as a result of which shares of Common Stock shall be converted into
the right to receive stock, securities or other property (including cash or
any combination thereof), the holder of each share of Class B Common Stock
shall have the right after such Transaction to convert such share, pursuant
to the optional conversion provisions hereof, into the number and kind of
shares of stock or other securities and the amount and kind of
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property receivable upon such Transaction by a holder of the number of
shares of Common Stock issuable upon conversion of such share of Class B
Common Stock immediately prior to such Transaction. The Corporation shall
not be party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this Section 3.6(vi), and it shall not
consent to or agree to the occurrence of any Transaction until the
Corporation has entered into an agreement with the successor or purchasing
entity, as the case may be, for the benefit of the holders of the Class B
Common Stock, thereby enabling the holders of the Class B Common Stock to
receive the benefits of this Section 3.6(vi) and the other provisions of
these Articles of Amendment. Without limiting the generality of the
foregoing, provision shall be made for adjustments in the Conversion Ratio
which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 3.6(i). The provisions of this Section
3.6(vi) shall similarly apply to successive Transactions.
(vii) In the event that the Corporation shall propose to effect
any Transaction which would result in an adjustment under Section 3.6(vi),
the Corporation shall cause to be mailed to the holders of record of Class
B Common Stock at least twenty (20) days prior to the applicable date
hereinafter specified a notice stating the date on which such Transaction
is expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon
such Transaction. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such Transaction.
3.7 OTHER.
(i) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Common Stock the maximum
number of shares of Common Stock issuable upon the conversion of all shares
of Class B Common Stock then outstanding, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Class B Common
Stock, in addition to such other remedies as shall be available to the
holder of such Class B Common Stock, the Corporation shall take such
corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued
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shares of Common Stock to such number of shares as shall be sufficient for
such purposes.
(ii) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares
of Class B Common Stock, but the Corporation shall not be required to pay
any taxes which may be payable in respect of any transfer of shares of
Class B Common Stock or any transfer involved in the issuance of shares of
Common Stock in a name other than that in which the shares of Class B
Common Stock so converted are registered, and the Corporation shall not be
required to transfer any such shares of Class B Common Stock or to issue or
deliver any such shares of Common Stock unless and until the person(s)
requesting such transfer or issuance shall have paid to the Corporation the
amount of any such taxes, or shall have established to the satisfaction of
the Corporation that such taxes have been paid.
(iii) The Corporation will not, by amendment of the Articles of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Corporation, but will at all times in good faith assist in carrying out
of all the provisions of these Articles of Amendment and in the taking of
all such action as may be necessary or appropriate to protect the
conversion rights of the holders of the Class B Common Stock against
impairment.
(iv) Holders of Class B Common Stock shall be entitled to receive
copies of all communications by the Corporation to its holders of Common
Stock, concurrently with the distribution to such shareholders.
(v) The Corporation warrants that all Common Stock issued upon
conversion of shares of Class B Common Stock will upon issue be fully paid
and nonassessable by the Corporation and free from original issue taxes.
(4) Voting Rights. The holders of record of Class B Common
Stock shall not be entitled to vote on any matter on which the holders of
record of Common Stock are entitled to vote, except that the holders of a
majority of the Class B Common Stock, voting as a separate class, shall be
required to vote on and approve: (a) any material adverse change in the
rights, preferences or
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<PAGE>
privileges of the Class B Common Stock, and (b) any creation of a new class
of stock having rights, preferences or privileges senior to or in parity
with the rights, preferences or privileges of the Class B Common Stock.
(5) Reacquired Shares. Shares of Class B Common Stock
converted, redeemed or otherwise purchased or acquired by the Corporation
shall be restored to the status of authorized but unissued shares of
preferred stock without designation as to series.
SECOND: The amendment does not increase the authorized stock of the
Corporation.
THIRD: The foregoing amendment to the Charter of the Corporation has been
advised by the Board of Directors and approved by the stockholders of the
Corporation.
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<PAGE>
IN WITNESS WHEREOF, CenterPoint Properties Corporation has caused these
presents to be signed in its name and on its behalf by its President and
witnessed by its Secretary on May 14, 1996.
WITNESS: CENTERPOINT PROPERTIES CORPORATION
/s/ Paul S. Fisher By: /s/ John S. Gates, Jr.
- ------------------------------ -----------------------------------
Paul S. Fisher, Secretary John S. Gates, Jr., President
THE UNDERSIGNED, President of CenterPoint Properties Corporation, who
executed on behalf of the Corporation the foregoing Articles of Amendment of
which this certificate is made a part, hereby acknowledges in the name and on
behalf of said Corporation the foregoing Articles of Amendment to be the
corporate act of said Corporation and hereby certifies that to the best of his
knowledge, information, and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
/s/ John S. Gates, Jr.
-----------------------------------
John S. Gates, Jr., President
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<PAGE>
CENTERPOINT PROPERTIES CORPORATION
ARTICLES OF AMENDMENT
CENTERPOINT PROPERTIES CORPORATION, a Maryland corporation (the
"Corporation"), having its principal office in Chicago, Illinois, hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The Charter of the Corporation is hereby amended by adding a new
Article XI as follows:
ARTICLE XI
QUORUM
At an annual meeting of the stockholders called for the sole purpose
of electing directors and ratifying the selection of the Corporation's
independent public accountants, the holders of one-third of the outstanding
shares of the Corporation entitled to vote, present in person or
represented by proxy, shall constitute a quorum at such annual meeting of
stockholders; provided, if less than one-third of the outstanding shares
entitled to vote are represented at said meeting, a majority of the shares
so represented may adjourn the meeting at any time without further notice.
At any other annual meeting or any special meeting of stockholders, the
holders of a majority of the outstanding shares of the Corporation entitled
to vote, present in person or represented by proxy, shall constitute a
quorum at such meeting of stockholders; provided, if less than a majority
of the outstanding shares entitled to vote are represented at said meeting,
a majority of the shares so represented may adjourn the meeting at any time
without further notice. If a quorum is present at any meeting of the
stockholders, the affirmative vote of the majority of the shares entitled
to vote represented at the meeting and entitled to vote on the matter shall
be the act of the stockholders. At any adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the original meeting. Withdrawal of stockholders from any
meeting shall not cause failure of a duly constituted quorum at that
meeting.
SECOND: The amendment does not increase the authorized stock of the
Corporation.
THIRD: The foregoing amendment to the Charter of the Corporation has been
advised by the Board of Directors and approved by the stockholders of the
Corporation.
<PAGE>
IN WITNESS WHEREOF, CenterPoint Properties Corporation has caused these
presents to be signed in its name and on its behalf by its President and
witnessed by its Secretary on May 14, 1996.
WITNESS: CENTERPOINT PROPERTIES CORPORATION
/s/ Paul S. Fisher By: /s/ John S. Gates, Jr.
- ------------------------------ -----------------------------------
Paul S. Fisher, Secretary John S. Gates, Jr., President
THE UNDERSIGNED, President of CenterPoint Properties Corporation, who
executed on behalf of the Corporation the foregoing Articles of Amendment of
which this certificate is made a part, hereby acknowledges in the name and on
behalf of said Corporation the foregoing Articles of Amendment to be the
corporate act of said Corporation and hereby certifies that to the best of his
knowledge, information, and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
/s/ John S. Gates, Jr.
-----------------------------------
John S. Gates, Jr., President
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<PAGE>
AMENDED AND RESTATED BY-LAWS
OF
CENTERPOINT PROPERTIES CORPORATION
ARTICLE I
OFFICES
SECTION 1.1 MARYLAND REGISTERED OFFICE. The corporation shall
continuously maintain in the State of Maryland a registered office and
registered agent whose office is identical with such registered office.
SECTION 1.2 OTHER OFFICES. The corporation may have other offices
within any other state of the United States, including, without limitation, the
State of Illinois.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. An annual meeting of the stockholders shall
be held each year for the purpose of electing directors and for the transaction
of such other business as may come before the meeting. Commencing with 1995,
the date of the annual meeting shall be set by the Board of Directors on a date
following the availability of the corporation's audited financial statements of
the preceding year but in no event later than May 31.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the stockholders may
be called either by the President or the board of directors or by stockholders
holding in the aggregate at least 25% of all the votes entitled to be cast at
the meeting.
SECTION 2.3 PLACE OF MEETING. The board of directors may designate any
place the place of meeting for any annual meeting or for any special meeting
called by the board of directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be at the main offices
of the corporation in Chicago, Illinois.
SECTION 2.4 INFORMAL ACTION BY STOCKHOLDERS. Any action required to be
taken at a meeting of the stockholders, or any other action which may be taken
at a meeting of the stockholders, may be taken without a meeting whether by
consent of the stockholders or otherwise as provided by the Maryland General
Corporation Law.
SECTION 2.5 NOTICE OF MEETINGS. Written notice stating the place, date
and hour of the meeting, and in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than 10
nor more than 90 days before the date of the meeting, or in the case of a
merger, consolidation, share exchange, dissolution or sale, lease or
<PAGE>
exchange of assets, not less than twenty nor more than sixty days before the
meeting, either personally or by mail, by or at the direction of the president,
or the board of directors, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited with the United States Postal Service, addressed to the stockholder at
his address as it appears on the records of the corporation, with postage
thereon prepaid. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken.
SECTION 2.6 FIXING OF RECORD DATE. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to receive payment of any dividend, or any rights in
respect of any change, conversion or exchange of shares or for the purpose of
any other lawful action, the board of directors of the corporation may fix in
advance a record date which shall not be more than sixty days and, for a meeting
of stockholders, not less than twenty days, or in the case of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of assets,
not less than twenty days, immediately preceding the date of such meeting. If
no record date is fixed, the record date for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders shall be the date
on which notice of the meeting is mailed, and the record date for the
determination of stockholders for any other purpose shall be the date on which
the board of directors adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting.
SECTION 2.7 STOCKHOLDERS' LIST. The officer or agent having charge of
the transfer books for shares of the corporation shall make, within twenty days
after record date or twenty days before each meeting of stockholders, whichever
is earlier, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order, showing the address of and the number
of shares registered in the name of the stockholder, which list, for a period of
twenty days prior to such meeting, shall be kept on file at the registered
office of the Corporation and shall be open to inspection by any stockholder for
any purpose germane to the meeting, at any time during usual business hours.
Such list shall also be produced and kept open at the time and place of the
meeting and may be inspected by any stockholder during the whole time of the
meeting. The original share ledger or transfer book, or a duplicate thereof
kept in the State of Illinois, shall be prima facie evidence as to who are the
stockholders entitled to examine such list or share ledger or transfer book or
to vote at any meeting of stockholders.
SECTION 2.8 VOTING OF SHARES. Except as otherwise provided in the
articles of incorporation or these by-laws, each outstanding share, regardless
of class, shall be entitled to one vote upon each matter submitted to vote at a
meeting of stockholders.
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SECTION 2.9 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as its by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine and under the law of incorporation of such corporation.
(a) Shares standing in the name of a deceased person, a minor ward or
an incompetent person, may be voted by his administrator, executor, court
appointed guardian, or conservator, either in person or by proxy without a
transfer of such shares in the name of such administrator, executor, court
appointed guardian, or conservator. Shares standing in the name of a
trustee may be voted by him, either in person or by proxy.
(b) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
(c) A stockholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
(d) Any number of stockholders may create a voting trust for the
purpose of conferring upon a trustee or trustees the right to vote or
otherwise represent their share, for a period not to exceed ten years, by
entering into a written voting trust agreement specifying the terms and
conditions of the voting trust, and by transferring their shares to such
trustee or trustees for the purpose of the agreement. Any such trust
agreement shall not become effective until a counterpart of the agreement
is deposited with the corporation at its registered office. The
counterpart of the voting trust agreement so deposited with the corporation
shall be subject to the same right of examination by a stockholder of the
corporation, in person or by agent or attorney, as are the books and
records of the corporation, and shall be subject to examination by any
holder of a beneficial interest in the voting trust, either in person or by
agent or attorney, at any reasonable time for any proper purpose.
(e) Stockholders may provide for the voting of their shares by
signing an agreement for that purpose. A voting agreement under this
subsection is not subject to the provisions of subsection (a) above.
(f) Shares of its own stock belonging to this corporation shall not
be voted, directly or indirectly, at any meeting and shall not be counted
in determining the total number of outstanding shares at any given time,
but shares of its own stock held by it in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares
at any given time.
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<PAGE>
SECTION 2.10 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy by signing an appointment form and delivering it to the person so
appointed, but no such proxy shall be valid after eleven months from the date of
its execution, unless otherwise provided in the proxy.
SECTION 2.11 CUMULATIVE VOTING. Unless otherwise provided in the
articles of incorporation, in elections for directors, no stockholder shall have
the right to cumulate his votes.
SECTION 2.12 QUORUM. At an annual meeting of the stockholders called for
the sole purpose of electing directors and ratifying the selection of the
corporation's independent public accountants, the holders of one-third of the
outstanding shares of the corporation entitled to vote, present in person or
represented by proxy, shall constitute a quorum at such annual meeting of
stockholders; provided that, if less than one-third of the outstanding shares
entitled to vote are represented at said meeting, a majority of the shares so
represented may adjourn the meeting at any time without further notice. At any
other annual meeting or any special meeting of stockholders, the holders of a
majority of the outstanding shares of the corporation entitled to vote, present
in person or represented by proxy, shall constitute a quorum at such meeting of
stockholders; provided that, if less than a majority of the outstanding shares
entitled to vote are represented at said meeting, a majority of the shares so
represented may adjourn the meeting at any time without further notice. If a
quorum is present at any meeting of the stockholders, the affirmative vote of
the majority of the shares entitled to vote represented at the meeting and
entitled to vote on the matter shall be the act of the stockholders. At any
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the original meeting. Withdrawal
of stockholders from any meeting shall not cause failure of a duly constituted
quorum at that meeting.
SECTION 2.13 INSPECTORS. At any meeting of stockholders, the chairman of
the meeting may, or upon request of any stockholder shall, appoint one or more
persons as inspectors for such meeting.
(a) Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the validity
and effect of proxies; count all votes and report the results; and do such
other acts as are proper to conduct the election and voting with
impartiality and fairness to all the stockholders.
(b) Each report of an inspector shall be in writing and signed by him
or by a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or
inspectors on the number of shares represented at the meeting and the
results of the voting shall be prima facie evidence thereof.
SECTION 2.14 VOTING BY BALLOT. Voting on any question or in any election
may be by voice unless the presiding officer shall order or any stockholder
shall demand that voting be by ballot.
4
<PAGE>
ARTICLE III
DIRECTORS
SECTION 3.1 GENERAL POWERS. The business and affairs of the corporation
shall be managed by, or under the direction of, its board of directors.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS. The number of directors
of the corporation shall be not less than three (3) and not more than ten (10),
as determined from time to time by the then acting board of directors. Each
director shall hold office until the next annual meeting of stockholders,
thereafter, until his successor shall have been elected. Directors need not be
residents of Maryland or Illinois or stockholders of the corporation. The
number of directors may be increased or decreased from time to time as provided
by the Articles of Incorporation by the amendment of this section; but no
decrease shall have the effect of shortening the term of any incumbent director.
A director may resign at any time by giving written notice to the board of
directors, its chairman, or to the president or secretary of the corporation. A
resignation is effective when the notice is given unless the notice specifies a
future date. The pending vacancy may be filled before the effective date, but
the successor shall not take office until the effective date. A majority of the
number of directors of the Board of Directors shall be independent (non-
management) directors of the corporation.
SECTION 3.3 QUORUM. A majority of the number of directors fixed by
these by-laws shall constitute a quorum for transaction of business at any
meeting of the board of directors, provided that if less than a majority of such
number of directors are present at said meeting, a majority of the directors
present may adjourn the meeting at any time without further notice.
SECTION 3.4 MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors, unless the act of a greater number is required by statute, these
by-laws, or the articles of incorporation.
SECTION 3.5 REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without other notice than this by-law, immediately after
the annual meeting of stockholders. The board of directors may provide, by
resolution, the time and place for holding of additional regular meetings
without other notice than such resolution.
SECTION 3.6 SPECIAL MEETINGS. Special meetings of the board of
directors may be called by or at the request of the president or any one or more
directors. The person or persons authorized to call special meetings of the
board of directors may fix any place as the place for holding any special
meeting of the board of directors called by them.
5
<PAGE>
SECTION 3.7 NOTICE. Notice of any special meeting shall be given at
least ten days previous thereto by written notice to each director at his
business address. If mailed, such notice shall be deemed to be delivered when
deposited with the United States Postal Service so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegram company. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 3.8 VACANCIES. Any vacancy occurring in the board of directors
and any directorship to be filled by reason of an increase in the number of
directors, may be filled by (1) election at an annual meeting or at a special
meeting of stockholders or (2) by the board of directors remaining. A director
elected by the stockholders to fill a vacancy shall hold office for the balance
of the term for which he or she was elected. A director appointed to fill a
vacancy shall serve until the next meeting of stockholders at which directors
are to be elected.
SECTION 3.9 REMOVAL OF DIRECTORS. One or more of the directors may be
removed, with or without cause, at a meeting of stockholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote at an election of directors, except as follows:
(a) No director shall be removed at a meeting of stockholders unless
the notice of such meeting shall state that a purpose of the meeting is to
vote upon the removal of one or more directors named in the notice. Only
the named director or directors may be removed at such meeting.
(b) In the case of a corporation having cumulative voting, if less
than the entire board is to be removed, no director may be removed, with or
without cause, if the votes cast against his or her removal would be
sufficient to elect him or her if then cumulatively voted at an election of
the entire board of directors.
(c) If a director is elected by a class or series of shares, he or
she may be removed only by the stockholders of that class or series.
In addition, one or more of the directors may be removed, with or without cause,
by the board of directors upon the affirmative vote of a majority of the then
acting directors.
SECTION 3.10 COMMITTEES OF DIRECTORS. The board of directors may, by
resolution or resolutions adopted by a majority of the number of directors fixed
by the by-laws or otherwise, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution of the board,
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<PAGE>
shall have and may exercise all of the powers and authority of the board of
directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power of authority in reference
to amending the articles of incorporation; adopting an agreement of merger or
consolidation; recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets; recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution; recommending to the stockholders any other action which requires
stockholder approval; amending the by-laws of the corporation; declaring a
dividend or authorizing the issuance of distributions on stock; or issue stock
other than pursuant to a stock option or similar compensation plan in accordance
with Section 2-411 of the Maryland General Corporation Law. Such committee or
committees shall have such name or names as may be determined by the board of
directors. The committees shall keep regular minutes of their proceedings and
report the same to the full board of directors when required.
SECTION 3.11 ACTION WITHOUT A MEETING. Unless specifically prohibited by
the articles of incorporation or these by-laws, any action required to be taken
at a meeting of the board of directors, or any other action which may be taken
at a meeting of the board of directors, or of any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the directors entitled to vote with respect to the
subject matter thereof, or by all the members of such committee, as the case may
be. Any such consent signed by all the directors or all the members of the
committee shall have the same effect as a unanimous vote.
SECTION 3.12 COMPENSATION. The board of directors, by the affirmative
vote of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers, or otherwise. By resolution of the board of directors, the directors
may be paid their expenses, if any, of attendance at each meeting of the board.
No such payment previously mentioned in this section shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of committees of the board may be allowed like compensation
for attending committee meetings.
SECTION 3.13 PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the secretary of the corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
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ARTICLE IV
OFFICERS
SECTION 4.1 NUMBER. The officers of the corporation shall be a
chairman, a president, a secretary, a treasurer, and any number of vice
presidents, treasurers, assistant treasurers, assistant secretaries or other
officers as may be elected by the board of directors. Any two or more offices
may be held by the same person except that for the offices of President and Vice
President.
SECTION 4.2 ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected or appointed annually by the board of directors at
the first meeting of the board of directors held after each annual meeting of
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be.
Vacancies may be filled or new offices created and filled at any meeting of the
board of directors. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until he
shall resign or shall have been removed in the manner hereinafter provided.
Election of an officer shall not of itself create contract rights.
SECTION 4.3 REMOVAL. Any officer elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4.4 CHAIRMAN. The chairman shall be the chairman of the board
of directors. He shall advise and counsel with the president and shall assume
such other duties as from time to time may be assigned by the board of
directors. He shall preside at all meetings of the board of directors and, in
the absence of the president or at the president's request, shall preside at all
meetings of the stockholders. He may execute for the corporation certificates
for its shares, and any contracts, deeds, mortgages, bonds, or other instruments
which the board of directors has authorized to be executed, and he may
accomplish such execution either under or without the seal of the corporation
and either individually or with the secretary, any assistant secretary, or any
other officer thereunto authorized by the board of directors, according to the
requirements of the form of the instrument.
SECTION 4.5 PRESIDENT. The president shall be the chief executive
officer of the corporation. Subject to the direction and control of the board
of directors, he shall be in charge of the business of the corporation; he shall
see that the resolutions and directions of the board of directors are carried
into effect except in those instances in which that responsibility is
specifically assigned to some other person by the board of directors; and, in
general, he shall discharge all duties incident to the office of president and
such other duties as may be prescribed by the board of directors from time to
time. He shall preside at all meetings of the stockholders and, in the absence
of the chairman, shall preside at all meetings of the board of directors.
Except in those instances in which the authority to execute is expressly
delegated to another officer or agent of the corporation or a different mode of
execution is expressly prescribed by the
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board of directors or these by-laws, he may execute for the corporation
certificates for its shares, and any contracts, deeds, mortgages, bonds, or
other instruments which the board of directors has authorized to be executed,
and he may accomplish such execution either under or without the seal of the
corporation and either individually or with the secretary, any assistant
secretary, or any other officer thereunto authorized by the board of directors,
according to the requirements of the form of the instrument. He may vote all
securities which the corporation is entitled to vote except as and to the extent
such authority shall be vested in a different officer or agent of the
corporation by the board of directors.
SECTION 4.6 THE VICE-PRESIDENT. The vice-president (or in the event
there be more than one vice-president, each of the vice-presidents) shall assist
the president in the discharge of his duties as the president may direct and
shall perform such other duties as from time to time may be assigned to him by
the president or by the board of directors. In the absence of the president or
in the event of his inability or refusal to act, the vice-president (or in the
event there be more than one vice-president, the vice-presidents in the order
designated by the board of directors, or by the president if the board of
directors has not made such a designation, or in the absence of any designation,
then in the order of seniority of tenure as vice-president) shall perform the
duties of the president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. Except in those instances
in which the authority to execute is expressly delegated to another officer or
agent of the corporation or a different mode of execution is expressly
prescribed by the board of directors or these by-laws, the vice-president (or
each of them if there are more than one) may execute for the corporation
certificates for its shares and any contracts, deeds, mortgages, bonds or other
instruments which the board of directors has authorized to be executed, and he
may accomplish such execution either under or without the seal of the
corporation and either individually or with the secretary, any assistant
secretary, or any other officer thereunto authorized by the board of directors,
according to the requirements of the form of the instrument.
SECTION 4.7 THE TREASURER. The treasurer shall be the chief operating
officer and principal accounting and financial officer of the corporation. He
shall:
(a) have charge of and be responsible for the maintenance of adequate
books of account for the corporation;
(b) have charge and custody of all funds and securities of the
corporation, and be responsible therefore and for the receipt and
disbursement thereof; and
(c) perform all the duties incident to the office of treasurer and
such other duties as from time to time may be assigned to him by the
president or by the board of directors.
If required by the board of directors, the treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the board of directors may determine.
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SECTION 4.8 THE SECRETARY. The secretary shall:
(a) record the minutes of the stockholders' and of the board of
directors' meetings in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal of the
corporation;
(d) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder;
(e) sign with the chairman, president, or a vice-president, or any
other officer thereunto authorized by the board of directors, certificates
for shares of the corporation, the issue of which shall have been
authorized by the board of directors, and any contracts, deeds, mortgages,
bonds, or other instruments which the board of directors has authorized to
be executed, according to the requirements of the form of the instrument,
except when a different mode of execution is expressly prescribed by the
board of directors or these by-laws;
(f) otherwise certify that by-laws, resolutions of the stockholders
and board of directors and committees thereof, and other documents of the
corporation as true and correct copies thereof;
(g) have general charge of the stock transfer books of the
corporation; and
(h) perform all duties incident to the office of secretary and such
other duties as from time to time may be assigned to him or her by the
president or by the board of directors.
SECTION 4.9 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
assistant treasurers and assistant secretaries shall perform such duties as
shall be assigned to them by the treasurer or the secretary, respectively, or by
the president or the board of directors. The assistant secretaries may sign
with the president, or a vice-president, or any other officer thereunto
authorized by the board of directors, certificates for shares of the
corporation, the issue of which shall have been authorized by the board of
directors, and any contracts, deeds, mortgages, bonds, or other instruments
which the board of directors has authorized to be executed, according to the
requirements of the form of the instrument, except when a different mode of
execution is expressly prescribed by the board of directors or these by-laws.
The assistant treasurers shall respectively, if required by the board of
directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the board of directors shall determine.
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SECTION 4.10 SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 5.1 CONTRACTS. The board of directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 5.2 LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 5.3 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
SECTION 5.4 DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the board of directors
may select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1 CERTIFICATES FOR SHARES. Certificates representing shares
of the corporation shall be signed by the chairman, president or a vice-
president or by such officer as shall be designated by resolution of the board
of directors and by the secretary or an assistant secretary, and shall be sealed
with the seal or a facsimile of the seal of the corporation. If both of the
signatures of the officers be by facsimile, the certificate shall be
countersigned by the corporation's duly authorized registrar and transfer agent.
Each certificate representing shares shall be consecutively numbered or
otherwise identified, and shall also state the name of the person to whom
issued, the number and class of shares (with designation of series, if any), the
date of issue, that the corporation is organized under Maryland law, and the par
value or a statement that the shares are without par value. If the corporation
is authorized and does issue shares of more than one class or of series within a
class, the certificate shall also contain such information or statement as may
be required by law. The name and address of each stockholder, the number and
class of shares held and the date on which the certificates for the shares were
issued shall be entered on the books of the corporation. The person in whose
name shares stand
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on the books of the corporation shall be deemed the owner thereof for all
purposes as regard the corporation.
SECTION 6.2 LOST CERTIFICATES. If a certificate representing shares has
allegedly been lost or destroyed the board of directors may in its discretion,
except as may be required by law, direct that a new certificate be issued upon
such indemnification and other reasonable requirements as it may impose.
SECTION 6.3 TRANSFERS OF SHARES. Transfers of shares of the corporation
shall be recorded on the books of the corporation and, except in the case of a
lost or destroyed certificate, on surrender for cancellation of the certificate
for such shares. A certificate presented for transfer must be duly endorsed and
accompanied by proper guaranty of signature and other appropriate assurances
that the endorsement is effective.
SECTION 6.4 RESTRICTION ON TRANSFER OF SECURITIES. A restriction on the
transfer or registration of transfer of securities of the corporation may be
imposed either under the articles of incorporation or by these by-laws or by
agreement among any number of security holders or among such holders and the
corporation. No restriction so imposed shall be binding with respect to
securities issued prior to the adoption of the restriction unless the holders of
the securities are parties to an agreement or voted in favor of the restriction.
A restriction on the transfer or registration of transfer of securities of
the corporation is permitted if, without limitation, it:
(i) requires the corporation or the holders of any class of
securities of the corporation to consent to any proposed transfer of the
restricted securities or to approve the proposed transferee of the
restricted securities; or
(ii) prohibits the transfer of the restricted securities to
designated persons or classes of persons with designation is not manifestly
unreasonable; or
(iii) restricts transfer or registration of transfer in any other
lawful manner.
Unless noted conspicuously on the security, a restriction, even though
permitted by this section, is ineffective except against a person with actual
knowledge of the restriction.
ARTICLE VII
FISCAL YEAR
SECTION 7.1 RESOLUTION OF DIRECTORS. The fiscal year of the corporation
shall end on December 31 of each year.
ARTICLE VIII
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DIVIDENDS
SECTION 8.1 DECLARED BY DIRECTORS. The board of directors may from time
to time declare, and the corporation may pay, dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and its
articles of incorporation.
ARTICLE IX
SEAL
SECTION 9.1 SUBSCRIPTION. The corporate seal, if any, shall have
inscribed thereon the name of the corporation and the words "Corporate Seal,
Maryland." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE X
WAIVER OF NOTICE
SECTION 10.1 WAIVER IN LIEU OF NOTICE. Whenever any notice is required
to be given under the provisions of these by-laws or under the provisions of the
articles of incorporation or under the provisions of Maryland law, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Attendance at any meeting shall constitute waiver of
notice thereof unless the person at the meeting objects to the holding of the
meeting because notice was not given.
ARTICLE XI
AMENDMENTS
SECTION 11.1 DETERMINED BY DIRECTORS. Unless reserved to the
stockholders by the articles of incorporation or required by law, the by-laws of
the corporation may be made, altered, amended or repealed solely by the board of
directors. Any by-law adopted by the stockholders may be altered, amended or
repealed by the board of directors. The by-laws may contain any provisions for
the regulation and management of the affairs of the corporation not inconsistent
with law or the articles of incorporation.
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ARTICLE XII
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 12.1 POWER TO HOLD HARMLESS. The corporation shall have the
power to indemnify any person to the full extent specified in Section 2-418 of
the Maryland General Corporation Law. Without limiting the generality of the
foregoing, the corporation shall have the power, unless limited from time to
time by the Maryland General Corporation Law, to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or who is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment or settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interest of the
corporation, or with respect to any criminal action or proceeding, that the
person had reasonable cause to believe that his or her conduct was unlawful.
SECTION 12.2 POWER TO INDEMNIFY LITIGANT. The corporation shall have
power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to the best
interests of the corporation, provided that no indemnification shall be made in
respect of any claim, issue or matter as to which such persons shall have been
adjudged to be liable for negligence or misconduct in the performance of his or
her duty to the corporation, unless, and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper.
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SECTION 12.3 REIMBURSEMENT AUTHORIZED. To the extent that a director,
officer, employee, or agent of a corporation has been successful, on the merits
or otherwise, in defense of any action, suit or proceeding referred to Sections
12.1 and 12.2 above, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith to the
extent not inconsistent with the Maryland General Corporation Law.
SECTION 12.4 DETERMINATION IF REIMBURSEMENT IS PROPER. Any
indemnification under Sections 12.1 and 12.2 above (unless ordered by court)
shall be made by the corporation only as authorized in the specific case, upon a
determination that indemnification of a director, officer, employee or agent is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in Section 12.1 or 12.2 above. Such determination shall be
made:
(a) by the board of directors by a majority of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or
(c) by the stockholders.
SECTION 12.5 ADVANCE OF EXPENSES. Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding, as authorized by
the board of directors in the specific case, upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount,
unless it shall ultimately be determined that he or she is entitled to be
indemnified by the corporation as authorized in this Article.
SECTION 12.6 NON-EXCLUSIVITY. The indemnification provided by this
article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any contract, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 12.7 RIGHT TO ACQUIRE INSURANCE. The corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under the provisions of this Article.
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SECTION 12.8 NOTICE OF STOCKHOLDERS. If a corporation has paid indemnity
or has advanced expenses to a director, officer, employee or agent, the
corporation shall report the indemnification or advance in writing to the
stockholders with or before the notice of the next stockholders' meeting.
SECTION 12.9 "CORPORATION;" DEFINITION. For purposes of this Article,
references to "the Corporation" shall include, in addition to the surviving
corporation, any merging corporation (including any corporation having merged
with a merging corporation) absorbed in a merger which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers, and employees or agents, so that any person who was a
director, officer, employee or agent of such merging corporation, or was serving
at the request of such merging corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the surviving corporation as such person would have with
respect to such merging corporation if its separate existence had continued.
SECTION 12.10 MISCELLANEOUS DEFINITIONS. For purposes of this Article,
references to "other enterprises" shall include employee benefit plans;
reference to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the corporation" shall include any services as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries. A person who acted in good faith and
in a manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interest of the corporation" as
referred to in this Article.
ARTICLE XIII
REPAYMENT OF DISALLOWED DEDUCTION
SECTION 13.1 FULL REIMBURSEMENT BY OFFICERS. Any payments made to an
officer of the corporation such as salary, commission, bonus, interest, rent,
medical reimbursement or entertainment expense incurred by him which, for
Federal income tax purposes, shall be disallowed in whole or in part as a
deductible expense by the Internal Revenue Service, shall be reimbursed by such
officer to the corporation to the full extent of such disallowance.
SECTION 13.2 SECURITY FOR REPAYMENT. It shall be the duty of the
directors, as a board, to enforce payment of such amount disallowed. In lieu of
payment by the officer, subject to the determination of the directors,
proportionate amounts may be withheld from his future compensation payments
until the amount owed to the corporation has been recovered.
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EXHIBIT 4.3
CENTERPOINT PROPERTIES CORPORATION, AS OBLIGOR
AND
[BANK], AS TRUSTEE
------------------
INDENTURE
DATED AS OF _________________, 19____
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SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . 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
Common Stock. . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . 3
Conversion Event. . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . 3
coupon. . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . 3
Debt. . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or "$" . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . 4
European Communities. . . . . . . . . . . . . . . . . 4
European Monetary System. . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency. . . . . . . . . . . . . . . . . . . 4
-i-
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GAAP. . . . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations. . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security. . . . . . . . . . . . . . . . . . . 5
Interest. . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . 6
Make-Whole Amount . . . . . . . . . . . . . . . . . . 6
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. . . . . . . . . . . . . . . . . 8
Preferred Stock . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . 8
Redemption Price. . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . 8
Repayment Date. . . . . . . . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . 8
Securities Act. . . . . . . . . . . . . . . . . . . . 9
Security. . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar. . . . . . . 9
Significant Subsidiary. . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . 9
Subsidiary. . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act or TIA. . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . 10
United States person. . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . 10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents. . . . . . . 14
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . 14
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . 14
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SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . 14
SECTION 111. No Personal Liability . . . . . . . . . . . . . . . . 14
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO SECURITIES FORMS. . . . . . . . . . . . . . . . . . . 15
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . 16
SECTION 203. Securities Issuable in Global Form. . . . . . . . . . 16
ARTICLE THREE THE SECURITIES. . . . . . . . . . . . . . . . . . . . 17
SECTION 301. Amount Unlimited: Issuable in Series . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . 21
SECTION 303. Execution, Authentication, Delivery and Dating. . . . 21
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . 23
SECTION 305. Registration, Registration of Transfer and Exchange . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . 28
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . 30
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . 33
ARTICLE FOUR SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . 33
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . 33
SECTION 402. Application of Trust Funds. . . . . . . . . . . . . . 34
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . 36
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . 37
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . 38
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons . . . . . . . . . . . . . . . 39
SECTION 506. Application of Money Collected. . . . . . . . . . . . 39
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . 40
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest
and Additional Amounts. . . . . . . . . . . . . . . 40
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . 40
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SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . 41
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . 41
SECTION 512. Control by Holders of Securities. . . . . . . . . . . 41
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . 41
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . 42
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . 42
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . 42
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . 42
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . 43
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . 44
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . 44
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . 44
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . 45
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . 45
SECTION 608. Resignation and Removal; Appointment of Successor . . 46
SECTION 609. Acceptance of Appointment by Successor. . . . . . . . 47
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . 48
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . 48
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . 50
SECTION 701. Disclosure of Names and Addresses of Holders. . . . . 50
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . 50
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . . . 50
SECTION 704. The Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . . . 51
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE
OR CONVEYANCE. . . . . . . . . . . . . . . . . . . 51
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject
to Certain Conditions . . . . . . . . . . . . . . . 51
SECTION 802. Rights and Duties of Successor Entity . . . . . . . . 52
SECTION 803. Officers' Certificate and Opinion of Counsel. . . . . 52
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . 52
SECTION 901. Supplemental Indentures Without Consent of Holders. . 52
SECTION 902. Supplemental Indentures with Consent of Holders . . . 54
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . 55
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . 55
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SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . 55
SECTION 906. Reference in Securities to Supplemental Indentures. . 55
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1001. Payment of Principal, Premium (if any), Interest and
Additional Amounts. . . . . . . . . . . . . . . . . 56
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . 56
SECTION 1003. Money for Securities Payments to Be Held in Trust . . 58
SECTION 1004. [Omitted] . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1005. [Omitted] . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1006. Existence . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1007. Maintenance of Properties . . . . . . . . . . . . . . 59
SECTION 1008. Insurance . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1009. Payment of Taxes and Other Claims . . . . . . . . . . 60
SECTION 1010. Provision of Financial Information. . . . . . . . . . 60
SECTION 1011. Statement as to Compliance. . . . . . . . . . . . . . 60
SECTION 1012. Additional Amounts. . . . . . . . . . . . . . . . . . 60
SECTION 1013. Waiver of Certain Covenants . . . . . . . . . . . . . 61
ARTICLE ELEVEN REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . 62
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . 62
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . 62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . 62
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . 62
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . 64
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . 64
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . 65
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . . 65
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . 65
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . 65
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . 66
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . 66
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . 66
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . 66
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . . . 67
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable . . . . . . . . . . . . . . . . . . 67
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . 68
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ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . 68
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . 68
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . . . 69
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . 69
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . 70
SECTION 1405. Deposited Money and Government Obligations to be Held
in Trust; Other Miscellaneous Provisions. . . . . . 71
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . 72
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . 72
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . . . 73
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . . . 73
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . . . . 73
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . 74
SECTION 1506. Counting Votes and Recording Action of Meetings . . . 75
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . . . 75
SECTION 1508. Proof of Execution of Instruments . . . . . . . . . . 76
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
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CENTERPOINT PROPERTIES CORPORATION, AS OBLIGOR
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939 Act")
and this Indenture, dated as of _______________, 19____.
Trust Indenture Act Section Indenture Section
Section 310 (a)(1). . . . . . . . . . . . . . . . . . . . 607
(a)(2). . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . 607, 608
Section 312 (c) . . . . . . . . . . . . . . . . . . . . . 701
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . 70
(c) . . . . . . . . . . . . . . . . . . . . . 702
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . 703
(a)(4). . . . . . . . . . . . . . . . . . . . 1011
(c)(1). . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (b) . . . . . . . . . . . . . . . . . . . . . 601
Section 316 (a)(last sentence). . . . . . . . . . . . . . 101("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1). . . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . 504
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . 111
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
<PAGE>
Indenture (this "Indenture"), dated as of ___________, 199__, by and
between CENTERPOINT PROPERTIES CORPORATION, a Maryland real estate investment
trust (the "Company"), having its principal office at 401 N. Michigan Avenue,
Suite 3000, Chicago, Illinois 60611, and [BANK], a national bank organized under
the laws of the United States of America, as Trustee hereunder (the "Trustee"),
having its Corporate Trust Office (as defined below) at _______________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (the "Securities") evidencing its unsecured and
unsubordinated indebtedness, and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to 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
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
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(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified in
Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any 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 set forth in Section 501.
"BEARER SECURITY" means any Security established pursuant to Section 201
which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"BOARD RESOLUTION" means a copy of a resolution of the Company certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with
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<PAGE>
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 Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"COMMON STOCK" means, with respect to any Person, capital stock or shares
of beneficial interest issued by such Person, other than Preferred Stock.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Company shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor company.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a written request
or order signed in the name of and on behalf of the Company by its Chairman of
the Board, the President or a Vice President, and by its Treasurer or an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at ___________, except
that for purposes of Section 1002, such terms shall mean the office or agency
of the Trustee in the _____________, which office at the date hereof is located
at _____________________.
"CORPORATION" includes corporations, associations, companies and business
trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"CUSTODIAN" has the meaning specified in Section 501.
"DEBT" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the
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<PAGE>
Company or any Subsidiary, (iii) letters of credit 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 of the Company or any Subsidiary as lessee which is
reflected on the Company's Consolidated Balance Sheet as a capitalized lease
in accordance with GAAP, 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 Company's consolidated balance
sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation of the Company or any Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), indebtedness of another person
(other than the Company or any Subsidiary).
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any successor
statute thereto, in each case as amended from time to time and the rules and
regulations of the Commission thereunder.
"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.
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<PAGE>
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the
particular series of Securities for which such Person is Trustee established as
contemplated by Section 331, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1012, includes such
Additional Amounts.
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"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MAKE-WHOLE AMOUNT" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"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 Chairman of the
Board of Directors, the President or a Vice-President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be reasonably satisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OUTSTANDING," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, PROVIDED that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 401,
1402 and 1403, as applicable, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Articles Four
or Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to
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this Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Stock or Preferred Stock
pursuant to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium or
Make-Whole Amount, if any)
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and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"PREFERRED STOCK" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person that is entitled to a
preference or priority over any other capital stock or shares of beneficial
interest issued by such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"REDEMPTION DATE," 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.
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"SECURITIES ACT" means the Securities Act of 1933 and any successor statute
thereto, in each case as amended from time to time and the rules and regulations
of the Commission thereunder.
"SECURITY" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time 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 the Company.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"STATED MATURITY," 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 or a partnership a majority of the
outstanding voting stock or partnership interests, as the case may be, of which
is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
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"UNITED STATES" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"YIELD TO MATURITY" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such
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Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take 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
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capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; PROVIDED that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
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SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
_________________________, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, 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
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such Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company shall be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this Indenture
or in any Security or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. NO PERSONAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security
or coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 112. GOVERNING LAW. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New York. This
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Indenture is subject to the provisions of the TIA that are required to be part
of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 113. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu hereof), payment of interest or
any Additional Amounts or principal (and premium, 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 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 this Indenture, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
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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.
[BANK], as Trustee
By:
-----------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global
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Security (i) in the case of a permanent global Security in registered form,
the Holder of such permanent global Security in registered form, or (ii) in
the case of a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED: ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1),
(2) and (15) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series when issued
from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date
shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, the City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, Securities of the
series shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, exchange or conversion and
notices or demands to
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or upon the Company in respect of the Securities of the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency
or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any 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 (including without limitation whether, and the extent to
which, the premium shall be payable in connection therewith), in whole
or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance with the
provisions of this Indenture, or the method by which such portion shall
be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall
be denominated;
(12) whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any) or interest, if any, on the Securities of
the series may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts, if any, on the Securities of
the series are to be payable, at
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the election of the Company or a Holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities
of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and vice
versa (if permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor
of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depositary for such
series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name the
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;
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(19) the applicability, if any, of Section 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1012 on the Securities of
the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(23) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into the Company's Common
Stock or Preferred Stock, as the case may be, and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period, any adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for purposes of
conversion);
(24) if convertible, in connection with the preservation of the
Company's status as a real estate investment trust under the applicable
provisions of the Internal Revenue Code of 1986, as amended, any
applicable limitations on the ownership or transferability of the Common
Stock or Preferred Stock into which such series of Securities is
convertible; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
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If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company on behalf of the Company and delivered
to the Trustee at or prior to the delivery of the Officers' Certificate
setting forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed by the
Company's Chairman of the Board, President or one of its Vice Presidents and
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities and coupons may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series
of Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or
CEDEL, as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered
and the date on which any temporary Security first becomes exchangeable for
such Bearer Security in accordance with the terms of such temporary Security
and this Indenture. 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
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as permitted by Section 306, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant coupons for interest then matured
have been detached and canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a)
through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable principles;
and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or a Company Order, or an Opinion of Counsel
or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and
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certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more coupons
or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in
a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore 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.
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(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 Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; PROVIDED, HOWEVER, that unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and PROVIDED, FURTHER, that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like unless such Person takes
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delivery of such definitive Securities in person at the offices of Euroclear
or CEDEL. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit A-1 to this Indenture (or in such other forms as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy
the certification requirements of the preceding two paragraphs of this
Section 304(b) and of the third paragraph of Section 303 of this Indenture
and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like
tenor on the Exchange date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of
principal or interest owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Company in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in
any such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security Register
as herein provided. In the event that the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security Register at all
reasonable times.
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Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Registered Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by Section
301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any
such unmatured coupon or coupons or matured coupon or coupons in default, any
such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such missing coupon
in respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the
same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the
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provisions of this Indenture. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is "DTC," then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected or approved
by the Company or to a nominee of such successor to DTC. If at any time DTC
notifies the Company that it is unwilling or unable to continue as depositary
for the applicable global Security or Securities or if at any time DTC ceases
to be a clearing agency registered under the Exchange Act if so required by
applicable law or regulation, the Company shall appoint a successor
depositary with respect to such global Security or Securities. If (x) a
successor depositary for such global Security or Securities is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (y) an Event
of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to
cease acting as depositary for such global Security or Securities or (z) the
Company, in its sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or issuable in the
form of one or more global Securities shall no longer be represented by such
global Security or Securities, then the Company shall execute, and the
Trustee shall authenticate and deliver definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such global Security or Securities. If any
beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date
on which such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; PROVIDED, HOWEVER, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and PROVIDED, FURTHER, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where
such exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the
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relevant Interest Payment Date, or (ii) any Special Record Date and the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest in respect of such
portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving
any transfer.
The Company, or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the
opening of business 15 days before selection of the Securities to be redeemed
under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption or (B) if such Securities are issuable
as Bearer Securities, the day of the first publication of the relevant notice
of redemption or, if such Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case
of any Registered Security to be redeemed in part, the portion thereof not to
be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, PROVIDED that such
Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee
to save each of them or any agent of either of them harmless, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and
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bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon; PROVIDED, HOWEVER, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any Additional
Amounts with respect to, Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that
each installment of interest on any Registered Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon
the written order of the Person entitled thereto pursuant to Section 308, to
the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security
held for its account by Cede & Co. or the Common Depositary, as the case may
be, for the purpose of permitting such party to credit the interest received
by it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date
and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will
not be payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by
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the Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address
as it appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in a
Place of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or agency on
any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture;
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium or Make-Whole
Amount, if any), and (subject to Sections 305 and 307) interest on, such
Registered Security and for all other purposes whatsoever, whether or not
such Registered Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company, or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and
owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such global Security.
SECTION 309. CANCELLATION. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Canceled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such
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destruction to the Company, unless by the Company Order, the Company directs
their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when,
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the
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Trustee for the giving of notice of redemption by the trustee in
the name, and at the expense of the Company, and the Company, in
the case of (i), (ii) or (iii) above, has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies, currency unit
or units or composite currency or currencies in which the
Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation,
for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or
Make-Whole Amount, if any), and any interest and Additional Amounts for whose
payment such money has been deposited with or received by the Trustee, but
such money need not be segregated from other funds except to the extent
required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body), it
being understood that an
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Event of Default with respect to a particular series of Securities does not
constitute an Event of Default with respect to any other series of Securities:
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security
of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company, or under any mortgage, indenture or other
instrument of the Company (including a default with respect to
Securities of any series other than that series) under which there may
be issued or by which there may be secured any indebtedness of the
Company (or by any Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly responsible for liable
as obligor or guarantor on a full recourse basis) whether such
indebtedness now exists or shall hereafter be created, which default
shall constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and payable after
the expiration of any applicable grace period with respect thereto and
shall have resulted in such indebtedness in an aggregate principal
amount exceeding $10,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; or
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(6) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11
U.S. Code or any similar Federal or State law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding, other than an Event of Default under clauses (6) or (7) of
Section 501, occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) and
premium or Make-Whole Amount (if any) of all the Securities of that series to
be due and payable immediately, by a notice in writing to the Company, (and
to the Trustee if given by the Holders), and upon any such declaration such
principal and premium or Make-Whole Amount (if any) or specified portion
thereof shall become immediately due and payable. If an Event of Default
specified in clauses (6) or (7) of Section 501 shall occur, then the
principal (or, if any Securities are Original Discount Securities, such
portion of the principal as may be
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specified by the terms thereof) and premium or Make-Whole Amount, if any,
shall immediately become due and payable, without any presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons;
(B) the principal of (and premium or Make-Whole Amount, if
any, on) any Outstanding Securities of that series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for in
such Securities; and
(C) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or
Make-Whole Amount, if any) or interest on Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of interest
or Additional Amounts, if any, of any Security of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days; or
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(2) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series at
its Maturity, then the Company will, upon demand of the Trustee, pay to
the Trustee, for the benefit of the Holders of such Securities of such
series and coupons, the whole amount then due and payable on such
Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium or Make-Whole Amount, if any) at the
rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company, or any other obligor upon such Securities of such
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
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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 or Make-Whole Amount, if any)
or interest and any Additional Amounts, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST:To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND:To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and any Additional Amounts payable, in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) interest and
Additional Amounts, respectively; and
THIRD:To the payment of the remainder, if any, to the Company.
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SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any
series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM OR MAKE-WHOLE AMOUNT, IF ANY, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions
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hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons, or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture, and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of any undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium or Make-Whole Amount, if any) or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; PROVIDED, HOWEVER, that, except
in the case of a default in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or any Additional Amounts with
respect to any Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the
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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(4) with respect to the Securities and coupons of such series, no
such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to the Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Trustees may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, 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
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determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(8) the Trustee shall not be liable for any action taken, 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.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
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SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by 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
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its 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(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium or Make-Whole
Amount, if any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the
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Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance or such appointment, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and
deliver to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become
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effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company, or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities or coupons so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities or coupons. In
case any Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities or coupons, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business
and in good
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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 Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[BANK], as Trustee,
By: ____________________________________
as Authenticating Agent
By: ____________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every
Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar
shall be held accountable by reason of the disclosure of any information as
to the names and addresses of the Holders of Securities in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after __________ of
each year commencing with the first __________ after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report
dated as of such __________ if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or if the Company is not required to file
information, documents or reports pursuant to either of such Sections,
then it will file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
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(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 704. THE COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular
Record Date, or if there is no Regular Record Date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times as the Trustee may request in Writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, PROVIDED, HOWEVER, that, so
long as the Trustee is the Security Registrar, no such list shall be
required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (i) either the Company shall be the continuing entity, or the successor
entity shall be an entity organized and existing under the laws of the United
States or a State thereof and such successor entity shall expressly assume
the due and punctual payment of the principal of (and premium or Make-Whole
Amount, if any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1012) on all of the Securities, according to
their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Company
by supplemental indenture, complying with Article Nine hereof, satisfactory
to the Trustee, executed and delivered to the Trustee by such entity and (ii)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result thereof as having been incurred by the Company or such Subsidiary at
the time or such
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transaction, no Event of Default, and no event which, after notice or the
lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR ENTITY. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the predecessor entity,
except in the event of a lease, shall be relieved of any further obligation
under this Indenture and the Securities. Such successor entity thereupon may
cause to be signed, and may issue either in its own name or in the name of
the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor entity, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor entity thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801
is also subject to the condition that the Trustee receive an Officers'
Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of such series); PROVIDED, HOWEVER, that in respect of
any such additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of that
or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions or this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into Common
Stock or Preferred Stock, as the case may be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
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(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(10) to close the Indenture with respect to the authentication and
delivery of additional sums of Securities or to qualify, or maintain
qualification of, the Indenture under the TIA; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts pursuant
to Section 1012 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security or Make-Whole Amount, if any, that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof 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), or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1013, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
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 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 Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the
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Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM (IF ANY), MAKE-WHOLE AMOUNT
(IF ANY), INTEREST AND ADDITIONAL AMOUNTS. The Company covenants and agrees
for the benefit of the Holders of each series of Securities that it will duly
and punctually pay the principal of (and premium or Make-Whole Amount, if
any) and interest on and any Additional Amounts payable in respect of the
Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series
of Securities, any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1012 in respect of principal
of (or premium or Make-Whole Amount, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
Unless otherwise specified with respect to Securities of any series pursuant
to Section 301, at the option of the Company, all payments of principal may
be paid by check to the registered Holder of the Registered Security or other
person entitled thereto against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Company shall maintain
in each Place of Payment for any series of Securities an office or agency
where Securities of that series may be presented or surrendered for payment
or conversion, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture
may be served. If Securities of a series are issuable as Bearer Securities,
the Company will maintain: (A) in the Borough of Manhattan, the City of New
York, an office or agency where any Registered Securities of that series may
be presented or surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served and where Bearer Securities of
that series and related coupons may be presented or surrendered for payment
or conversion in the circumstances described in the following paragraph (and
not otherwise); (B) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of
any Additional Amounts payable on Securities of that series pursuant to
Section 1012) or conversion; PROVIDED, HOWEVER, that if the Securities of
that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations
applicable
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thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1012) or conversion at the offices specified
in the Security, in London, England, and the Company hereby appoints the same
as its agent to receive such respective presentations, surrenders, notices
and demands, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in
the United States; PROVIDED, HOWEVER, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium or Make-Whole
Amount and interest on any Bearer Security (including any Additional Amounts
payable on Securities of such series pursuant to Section 1012) shall be made
at the office of the Company's Paying Agent in the Borough of Manhattan, the
City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or Make-Whole Amount, interest or Additional Amounts,
as the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this Indenture,
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to Section 301
with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the Borough of Manhattan, the City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in such
city and as its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of the
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Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each
due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, on or before each due date of
the principal of (and premium or Make-Whole Amount, if any), or interest on
or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or
units or composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or Make-Whole Amount or interest or Additional Amounts and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided.
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest, and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent,
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such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in respect of, any
Security of any series and remaining unclaimed for two years after such
principal (and premium or Make-Whole Amount, if any), interest or Additional
Amounts has become due and payable shall be paid to the Company upon Company
Request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal of (and
premium or Make-Whole Amount, if any) or interest on, or any Additional
Amounts in respect of, any Security, without interest thereon, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper, notice that such money
remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
SECTION 1004. [Omitted].
SECTION 1005. [Omitted].
SECTION 1006. EXISTENCE. Subject to Article Eight, the Company will do
or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any right or franchise if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1007. MAINTENANCE OF PROPERTIES. The Company will cause all of
its properties used or useful in the conduct of its business or the business
of any Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in
this Section shall prevent the Company or any Subsidiary from selling or
otherwise disposing for value its properties in the ordinary course of its
business.
SECTION 1008. INSURANCE. The Company will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with financially
sound and reputable insurers.
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SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property
of the Company or any Subsidiary; PROVIDED, HOWEVER, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim (i) whose amount, applicability or
validity is being contested in good faith by appropriate proceedings or (ii)
for which the Company has set apart and maintains an adequate reserve.
SECTION 1010. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Company is subject to Section 13 or 15(d) of the Exchange Act, the Company
will, to the extent permitted under the Exchange Act, file with the
Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13 or 15(d) if the Company were so subject, such documents to be
filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file such
documents if the Company were so subject.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Company would have been
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections, and (ii) file with
the Trustee copies of the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company
were subject to such Sections and (y) if filing such documents by the Company
with the Commission is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
SECTION 1011. STATEMENT AS TO COMPLIANCE. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture and, in the
event of any noncompliance, specifying such noncompliance and the nature and
status thereof. For purposes of this Section 1011, such compliance shall be
determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 1012. ADDITIONAL AMOUNTS. If any Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context except in the
case of Section 502(1), the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be
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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 Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such Holders
of Securities of that series or related coupons and the Company will pay to
the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or
such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal, premium 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, premium and interest with respect to the Securities of
a series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them or in
reliance on any Officers' Certificate furnished pursuant to this Section or
in reliance on the Company's not furnishing such an Officers' Certificate.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 1004 to 1010, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
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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 Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company
of less than all of the Securities of any series, the Company shall, at least
45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption
of any other such Security or portion thereof.
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Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts,
if any;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company and the Trustee for such series and any
Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may
be made;
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(10) the CUSIP number of such Security, if any; and
(11) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate,
and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At least one Business Day
prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay on the Redemption Date the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed
on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such
interest; and PROVIDED, FURTHER, that, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company
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and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall
have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; PROVIDED, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security
or Securities of the same series, of any authorized denomination as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for
by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of
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such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the
terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit
have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is
to be satisfied by payment of cash in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and credited. If
such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at
a price equal to the principal amount thereof, together with interest, if
any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that at least one Business
Day prior to the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as it 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
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provided by the terms of the Securities of any series, a percentage of the
principal) or, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the
case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or
at such other place or places of which the Company shall from time to time
notify the Holders of such Securities) not earlier than 60 days nor later
than 30 days prior to the Repayment Date (1) the Security so providing for
such repayment together with the "Option to Elect Repayment" form on the
reverse thereof duly completed by the Holder (or by the Holder's attorney
duly authorized in writing) or (2) a telegram, telex, facsimile transmission
or a letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or
trust company in the United States setting forth the name of the Holder of
the Security, the principal amount of the Security, the principal amount of
the Security to be repaid, the CUSIP number, if any, or a description of the
tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee
not later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; PROVIDED, HOWEVER, that such telegram,
telex, facsimile transmission or letter shall only be effective if such
Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid, must
be specified. The principal amount of any Security providing for repayment
at the option of the Holder thereof may not be repaid in part if, following
such repayment, the unpaid principal amount of such Security would be less
than the minimum authorized denomination of Securities of the series of which
such Security to be repaid is a part. Except as otherwise may be provided by
the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portion thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon
surrender of any Security for repayment in accordance with such provisions,
together with coupons, if any, appertaining thereto maturing after the
Repayment Date, the principal amount of
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such Security so to be repaid by the Company, together with accrued interest,
if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and PROVIDED, FURTHER, that,
in the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
with interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such securities, or one or more Predecessor
Securities, registered as such at the close of business relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there shall be furnished to it such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in
such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this
Article (with such
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modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section
1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth
below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this
Indenture referred to in clauses (A) and (B) below, and to have satisfied all
of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described
in Section 1404 and as more fully set forth in such Section, payments in
respect of the principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Securities and any coupons appertaining thereto
when such payments are due, (B) the Company's obligations with respect to
such Securities under Section 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1012, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this
Article Fourteen, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with
respect to such Securities and any coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Section 1004 to 1010, inclusive and if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 to 1010,
inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities
and any coupons appertaining thereto, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section
or such other covenant or by reason of reference in any Section or such other
covenant to
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any other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under Section
501(4) or 501(8) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Sated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with the terms will
provide, not later than one day before the due date of any payment of
principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Securities and any coupons appertaining thereto, money in an
amount, or (3) a combination thereof, any case, in an amount, sufficient
without consideration of any reinvestment of such principal and interest,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
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(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
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 with the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and
any coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium or Make-
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<PAGE>
Whole Amount, if any) and interest and Additional Amounts, if any, but such
money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect to the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such
currency of currency unit in effect on the second Business Day prior to each
payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received
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, subjection to
Section 606, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to
be deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
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<PAGE>
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may
at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and 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 by Section 106, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In the case at any time the Company pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
securities of any series shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the actin
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or
in London for such meeting and may call such meeting for such purposes by
giving notice as provided in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities o such series;
PROVIDED, HOWEVER, that if any action is to 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 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 any be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjoined meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as
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<PAGE>
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specific
percentage, which is less than a majority, in principal amount the
Outstanding Securities or 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 act that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirements for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. (a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
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<PAGE>
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 been called by the Company
or by Holders of Securities provided in Section 1502(b), in which case the
Company or the Holders of Securities of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for such $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 Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Holders of any or every series of Securities may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agent
duly
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<PAGE>
appointed in writing; and, except as herein otherwise expressly provided,
such actin shall become effective when such instrument or instruments are
delivered to the Trustee. Proof and execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Article Six) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Article.
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS. Subject to Article
Six, the execution of any instrument by a Holder or his agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any manner as shall be satisfactory to the
Trustee.
*****
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the date and year first above written.
CENTERPOINT PROPERTIES CORPORATION
By:________________________________
Title:
[BANK], as Trustee
By:________________________________
Title: Vice President
ATTEST:
By:________________________________
Title: Assistant Vice President
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<PAGE>
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
On the __th day of , 19____, before me personally came to me known,
_________________________ who, being by me duly sworn, did depose and say
that he/she resides in _________________________, that he/she is the
_________________________ of CenterPoint Properties Corporation, one of the
parties described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of said corporation.
[Notarial Seal]
__________________________________
Notary Public
COMMISSION EXPIRES
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
On the __th day of , 19____, before me personally came to me known,
_________________________ who, being by me duly sworn, did depose and say
that he/she resides in _________________________, that he/she is the
___________________________ of _____________________________, one of the
parties described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of said corporation.
[Notarial Seal]
__________________________________
Notary Public
COMMISSION EXPIRES
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 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
CenterPoint Properties Corporation 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 the purpose 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 required the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct
on such date, and in the 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
<PAGE>
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:
-2-
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
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 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 CenterPoint Properties Corporation 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 "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
<PAGE>
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 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 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:__________________________________
-2-
<PAGE>
Exhibit 4.4
CENTERPOINT PROPERTIES CORPORATION, AS OBLIGOR
AND
[BANK], AS TRUSTEE
__________________
INDENTURE
DATED AS OF _________________, 19____
_______________________________________________________________________________
SUBORDINATED DEBT SECURITIES
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
PAGE
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . 3
Conversion Event. . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Coupon. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or "$" . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Communities. . . . . . . . . . . . . . . . . . . . 4
European Monetary System. . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency. . . . . . . . . . . . . . . . . . . . . . 5
-i-
<PAGE>
PAGE
----
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security. . . . . . . . . . . . . . . . . . . . . . 6
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . 6
Make-Whole Amount . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security. . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . 8
Payment or Distribution . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment. . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security. . . . . . . . . . . . . . . . . . . . 8
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price. . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . 8
Repayment Date. . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . 9
Securities Act. . . . . . . . . . . . . . . . . . . . . . . 9
Security. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar. . . . . . . . . . 9
Senior Debt.... . . . . . . . . . . . . . . . . . . . . . . 9
Significant Subsidiary. . . . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 10
Subordinated Indebtedness . . . . . . . . . . . . . . . . . 10
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . . . . . . 10
United States Person. . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents. . . . . . . . . . 15
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SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . . . 15
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . 15
SECTION 111. No Personal Liability . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO SECURITIES FORMS. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . 17
SECTION 203. Securities Issuable in Global Form. . . . . . . . . . . . . 17
ARTICLE THREE THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 301. Amount Unlimited: Issuable in Series . . . . . . . . . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . 22
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and Exchange . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . 30
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . 31
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 33
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . 34
ARTICLE FOUR SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . 34
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . 34
SECTION 402. Application of Trust Funds. . . . . . . . . . . . . . . . . 35
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . 36
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . 38
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . 39
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . 40
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . 41
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . 41
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest
and Additional Amounts . . . . . . . . . . . . . . . . 42
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . 42
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SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . 42
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . 42
SECTION 512. Control by Holders of Securities. . . . . . . . . . . . . . 42
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 43
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . 43
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 43
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 44
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . 44
SECTION 603. Not Responsible for Recitals or Issuance of Securities. . . 45
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . 46
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . 46
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . . . . 46
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . 47
SECTION 609. Acceptance of Appointment by Successor. . . . . . . . . . . 48
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 50
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . 50
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . 52
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . 52
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . . . . . . 52
SECTION 704. The Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . 53
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE
OR CONVEYANCE. . . . . . . . . . . . . . . . . . . . . 53
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject
to Certain Conditions. . . . . . . . . . . . . . . . . 53
SECTION 802. Rights and Duties of Successor Entity . . . . . . . . . . . 53
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . 54
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . 54
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . 54
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . 56
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . 57
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . 57
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . 57
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SECTION 906. Reference in Securities to Supplemental Indentures. . . . . 57
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole
Amount (if any), Interest and Additional Amounts . . . 58
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . 58
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . 60
SECTION 1004. [Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1005. [Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1006. Existence . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1007. Maintenance of Properties . . . . . . . . . . . . . . . . . 61
SECTION 1008. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1009. Payment of Taxes and Other Claims . . . . . . . . . . . . . 62
SECTION 1010. Provision of Financial Information. . . . . . . . . . . . . 62
SECTION 1011. Statement as to Compliance. . . . . . . . . . . . . . . . . 62
SECTION 1012. Additional Amounts. . . . . . . . . . . . . . . . . . . . . 62
SECTION 1013. Waiver of Certain Covenants . . . . . . . . . . . . . . . . 63
ARTICLE ELEVEN REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . . . 64
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . 64
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . 64
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . 64
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . 64
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . 66
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . 66
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . 67
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . 67
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . 68
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . 68
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . . . . 68
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . . . . 68
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . 69
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . . . . . . 69
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. . . . . . . . . . . . . . . . . . . . 70
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . 70
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . . 71
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SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. . . . . . . . . . . 71
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . . . . . . 71
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 72
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . 72
SECTION 1405. Deposited Money and Government Obligations to be Held
in Trust; Other Miscellaneous Provisions . . . . . . . 74
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . 75
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . . 75
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . . . . . . 75
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . . . . . . 75
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . . 77
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . 77
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . . . . . . 78
SECTION 1508. Proof of Execution of Instruments . . . . . . . . . . . . . 78
ARTICLE SIXTEEN SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1601. Securities Subordinated to Senior Debt. . . . . . . . . . . 78
SECTION 1602. Company Not to Make Payments with Respect to Securities
in Certain Circumstances.. . . . . . . . . . . . . . . 79
SECTION 1603. Subrogation of Securities.. . . . . . . . . . . . . . . . . 81
SECTION 1604. Authorization by Holders. . . . . . . . . . . . . . . . . . 82
SECTION 1605. Notices to Trustee. . . . . . . . . . . . . . . . . . . . . 82
SECTION 1606. Trustee's Relation to Senior Debt . . . . . . . . . . . . . 83
SECTION 1607. No Impairment of Subordination. . . . . . . . . . . . . . . 83
SECTION 1608. Article 16 Not to Prevent Events of Default . . . . . . . . 83
SECTION 1609. Paying Agents other than the Trustee. . . . . . . . . . . . 83
SECTION 1610. Securities Senior to Subordinated Indebtedness . . . . . . 83
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
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<PAGE>
CENTERPOINT PROPERTIES CORPORATION, AS OBLIGOR
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939 Act")
and this Indenture, dated as of _______________, 1995.
Trust Indenture Act Section Indenture Section
Section 310 (a)(1). . . . . . . . . . . . . . . . . . . . 607
(a)(2). . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . 607, 608
Section 312 (c) . . . . . . . . . . . . . . . . . . . . . 701
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . 70
(c) . . . . . . . . . . . . . . . . . . . . . 702
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . 703
(a)(4). . . . . . . . . . . . . . . . . . . . 1011
(c)(1). . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (b) . . . . . . . . . . . . . . . . . . . . . 601
Section 316 (a)(last sentence). . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . 504
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . 111
____________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
<PAGE>
Indenture (this "Indenture"), dated as of ____________, 199__, by and
between CENTERPOINT PROPERTIES CORPORATION, a Maryland real estate investment
trust (the "Company"), having its principal office at 401 N. Michigan Avenue,
Suite 3000, Chicago, Illinois 60611, and [BANK], a national bank organized under
the laws of the United States of America, as Trustee hereunder (the "Trustee"),
having its Corporate Trust Office (as defined below) at ______________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes subordinated debt securities (the "Securities") evidencing its
unsecured and subordinated 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
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
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(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified in
Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any 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 set forth in Section 501.
"BEARER SECURITY" means any Security established pursuant to Section 201
which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"BOARD RESOLUTION" means a copy of a resolution of the Company certified by
the Secretary or an Assistant Secretary of the Company 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.
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"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 Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"COMMON STOCK" means, with respect to any Person, capital stock or shares
of beneficial interest issued by such Person, other than Preferred Stock.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Company shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor company.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a written request
or order signed in the name of and on behalf of the Company by its Chairman of
the Board, the President or a Vice President, and by its Treasurer or an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at
__________________, except that for purposes of Section 1002, such terms
shall mean the office or agency of the Trustee in the ____________________,
which office at the date hereof is located at ______________________.
"CORPORATION" includes corporations, associations, companies and business
trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"CUSTODIAN" has the meaning specified in Section 501.
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<PAGE>
"DEBT" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance
or any security interest existing on property owned by the Company or any
Subsidiary, (iii) letters of credit 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 of the Company or any Subsidiary as lessee which is
reflected on the Company's Consolidated Balance Sheet as a capitalized lease
in accordance with GAAP, 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 Company's consolidated balance
sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation of the Company or any Subsidiary to be liable for,
or to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), indebtedness of another
person (other than the Company or any Subsidiary).
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any successor
statute thereto, in each case as amended from time to time and the rules and
regulations of the Commission thereunder.
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<PAGE>
"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.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the
particular series of Securities for which such Person is Trustee established as
contemplated by Section 331, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
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"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1012, includes such
Additional Amounts.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MAKE-WHOLE AMOUNT" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"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 Chairman of the
Board of Directors, the President or a Vice-President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be reasonably satisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OUTSTANDING," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining
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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 401,
1402 and 1403, as applicable, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Articles Four
or Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(v) Securities converted into Common Stock or Preferred Stock
pursuant to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
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"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"PAYMENT OR DISTRIBUTION" has the meaning set forth in Section 1601.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"PREFERRED STOCK" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person that is entitled to a
preference or priority over any other capital stock or shares of beneficial
interest issued by such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"REDEMPTION DATE," 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.
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"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.
"SECURITIES ACT" means the Securities Act of 1933 and any successor statute
thereto, in each case as amended from time to time and the rules and regulations
of the Commission thereunder.
"SECURITY" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SENIOR DEBT" means (i) the principal of and premium, if any, and interest
on indebtedness for borrowed money, (ii) purchase money and similar obligations,
(iii) obligations under capital leases, (iv) guarantees, assumptions or purchase
commitments relating to, or other transactions as a result of which the Company
is responsible for payment of, such indebtedness of others, (v) renewals,
extensions and refunding of any such indebtedness, (vi) interest or obligations
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings and (vii) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (i) through
(vii) expressly provides that such indebtedness or obligation is subordinate or
junior in right of payment to any other indebtedness or obligations of the
Company. As used in the preceding sentence, the term "purchase-money
obligations" shall mean indebtedness or obligations evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest but excluding indebtedness or obligations for which recourse
is limited to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition
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of property, whether by purchase, merger, consolidation or otherwise, but
shall not include any trade accounts payable.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"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.
"SUBORDINATED INDEBTEDNESS" means the principal, premium, if any, and
interest on any indebtedness of the Company which by its terms is expressly
subordinated in right of payment to the Securities.
"SUBSIDIARY" means a corporation or a partnership a majority of the
outstanding voting stock or partnership interests, as the case may be, of which
is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
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"YIELD TO MATURITY" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion,
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certificate or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel
or certificate or representations may be based insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information as to such
factual matters is in the possession of the Company, unless such counsel
knows that the certificate or opinion or representations as to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take 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.
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(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or
(2) such Bearer Security is produced to the Trustee by some other Person, or
(3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
_________________________, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, 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
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Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company shall be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this Indenture
or in any Security or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. NO PERSONAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security
or coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 112. GOVERNING LAW. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New York. 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.
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SECTION 113. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
any Security or coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu hereof),
payment of interest or any Additional Amounts or principal (and premium, 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 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 this Indenture, shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements placed thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities or coupons, as
evidenced by their execution of such Securities or coupons.
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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.
[BANK], as Trustee
By:
-----------------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as
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the Holder of such principal amount of Outstanding Securities represented by
a permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (ii) in the case of a permanent global Security in bearer form,
Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED: ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1),
(2) and (15) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series when issued
from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series shall
be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, the City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and Additional
Amounts, if any, payable in respect of, Securities of the series shall be
payable, any Registered Securities of the series may be
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surrendered for registration of transfer, exchange or conversion and
notices or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any 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 (including without
limitation whether, and the extent to which, the premium shall be payable
in connection therewith), in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or, if applicable, the portion of the principal amount of Securities of the
series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall be
denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies, commodities,
equity indices or other indices), and the manner in which such amounts
shall be determined;
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(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the
series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which,
and the terms and conditions upon which, such election may be made, and the
time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name the
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;
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(19) the applicability, if any, of Section 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1012 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) the obligation, if any, of the Company to permit the conversion
of the Securities of such series into the Company's Common Stock or
Preferred Stock, as the case may be, and the terms and conditions upon
which such conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any adjustment of
the applicable conversion price and any requirements relative to the
reservation of such shares for purposes of conversion);
(24) if convertible, in connection with the preservation of the
Company's status as a real estate investment trust under the applicable
provisions of the Internal Revenue Code of 1986, as amended, any applicable
limitations on the ownership or transferability of the Common Stock or
Preferred Stock into which such series of Securities is convertible; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
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If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company on behalf of the Company and delivered
to the Trustee at or prior to the delivery of the Officers' Certificate
setting forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed by the
Company's Chairman of the Board, President or one of its Vice Presidents and
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities and coupons may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series
of Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or
CEDEL, as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered
and the date on which any temporary Security first becomes exchangeable for
such Bearer Security in accordance with the terms of such temporary Security
and this Indenture. 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
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original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a)
through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable principles;
and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Securities
have been complied with and that, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any
of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or a Company Order, or an
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Opinion of Counsel or an Officers' Certificate otherwise required pursuant to
the preceding paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificates, with appropriate
modifications to cover such future issuances, shall be delivered at or before
the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more coupons
or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in
a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore 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
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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 Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; PROVIDED, HOWEVER, that unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and PROVIDED, FURTHER, that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent
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appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must
bear the cost of insurance, postage, transportation and the like unless such
Person takes delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit A-1 to this Indenture (or in such other forms as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy
the certification requirements of the preceding two paragraphs of this
Section 304(b) and of the third paragraph of Section 303 of this Indenture
and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like
tenor on the Exchange date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of
principal or interest owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Company in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in
any such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security
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Registrar" for the purpose of registering Registered Securities and transfers
of Registered Securities on such Security Register as herein provided. In
the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Registered Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by Section
301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any
such unmatured coupon or coupons or matured coupon or coupons in default, any
such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such missing coupon
in respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the
same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of
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business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be, and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is "DTC," then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected or approved
by the Company or to a nominee of such successor to DTC. If at any time DTC
notifies the Company that it is unwilling or unable to continue as depositary
for the applicable global Security or Securities or if at any time DTC ceases
to be a clearing agency registered under the Exchange Act if so required by
applicable law or regulation, the Company shall appoint a successor
depositary with respect to such global Security or Securities. If (x) a
successor depositary for such global Security or Securities is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (y) an Event
of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to
cease acting as depositary for such global Security or Securities or (z) the
Company, in its sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or issuable in the
form of one or more global Securities shall no longer be represented by such
global Security or Securities, then the Company shall execute, and the
Trustee shall authenticate and deliver definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such global Security or Securities. If any
beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date
on which such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; PROVIDED, HOWEVER, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant
Redemption Date if
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the Security for which exchange is requested may be among those selected for
redemption; and PROVIDED, FURTHER, that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest, interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date
or proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving
any transfer.
The Company, or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the
opening of business 15 days before selection of the Securities to be redeemed
under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption or (B) if such Securities are issuable
as Bearer Securities, the day of the first publication of the relevant notice
of redemption or, if such Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case
of any Registered Security to be redeemed in part, the portion thereof not to
be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, PROVIDED that such
Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security
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which has been surrendered for repayment at the option of the Holder, except
the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee
to save each of them or any agent of either of them harmless, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining
to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon; PROVIDED, HOWEVER, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any Additional
Amounts with respect to, Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual
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obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that
each installment of interest on any Registered Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon
the written order of the Person entitled thereto pursuant to Section 308, to
the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security
held for its account by Cede & Co. or the Common Depositary, as the case may
be, for the purpose of permitting such party to credit the interest received
by it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date
and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will
not be payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder
thereof on the
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relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each
Place of Payment, but such publication shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture;
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(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium or Make-Whole
Amount, if any), and (subject to Sections 305 and 307) interest on, such
Registered Security and for all other purposes whatsoever, whether or not
such Registered Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company, or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and
owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such global Security.
SECTION 309. CANCELLATION. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and coupons and Securities and
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coupons surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly canceled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Canceled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by the Company Order,
the Company directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when,
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged
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from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the trustee in the name, and at the expense of the
Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount in
the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness
on such Securities and such coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium or Make-
Whole Amount, if any) and interest, and any Additional Amounts
with respect thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the
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Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium or Make-Whole Amount,
if any), and any interest and Additional Amounts for whose payment such money
has been deposited with or received by the Trustee, but such money need not
be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body), it
being understood that an Event of Default with respect to a particular series
of Securities does not constitute an Event of Default with respect to any
other series of Securities:
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company, or under any mortgage, indenture or other
instrument of the Company (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any indebtedness of the Company (or by any
Subsidiary, the repayment of which the
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Company has guaranteed or for which the Company is directly responsible
for liable as obligor or guarantor on a full recourse basis) whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding
$10,000,000 of such indebtedness when due and payable after the expiration
of any applicable grace period with respect thereto and shall have
resulted in such indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its property,
or
(C) orders the liquidation of the Company or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
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As used in this Section 501, the term "Bankruptcy Law" means Title 11
U.S. Code or any similar Federal or State law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding, other than an Event of Default under clauses (6) or (7) of
Section 501, occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) and
premium or Make-Whole Amount (if any) of all the Securities of that series to
be due and payable immediately, by a notice in writing to the Company, (and
to the Trustee if given by the Holders), and upon any such declaration such
principal and premium or Make-Whole Amount (if any) or specified portion
thereof shall become immediately due and payable. If an Event of Default
specified in clauses (6) or (7) of Section 501 shall occur, then the
principal (or, if any Securities are Original Discount Securities, such
portion of the principal as may be specified by the terms thereof) and
premium or Make-Whole Amount, if any, shall immediately become due and
payable, without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons;
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities; and
(C) 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
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(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, of any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and
such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amount, with interest upon any overdue principal (and premium or
Make-Whole Amount, if any) at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company, or any other obligor upon such Securities of such
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium or Make-Whole Amount, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series 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.
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SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium or Make-Whole Amount, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole Amount, if
any) and interest and any Additional Amounts payable, in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts due
and payable on such Securities and coupons for principal (and premium or
Make-Whole Amount, if any) interest and Additional Amounts, respectively;
and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series
or any related coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb
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or prejudice the rights of any other of such Holders, or to obtain or to seek
to obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
OR MAKE-WHOLE AMOUNT, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding
any other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of
the principal of (and premium or Make-Whole Amount, if any) and (subject to
Sections 305 and 307) interest on, and any Additional Amounts in respect of,
such Security or payment of such coupon on the respective due dates expressed in
such Security or coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
PROVIDED that
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect of
any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture, and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims
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or defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on or any Additional Amounts with respect to any Security of
such series, or in the payment of any sinking fund installment with respect to
the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities and coupons of such series; and PROVIDED, FURTHER, that in the
case of any default or breach of the character specified in Section 501(4) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Trustees may be sufficiently evidenced by a
Board Resolution;
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(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, 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.
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
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any coupons shall be taken as the statements of the Company and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder.
Neither the Trustee nor any Authenticating Agent shall be accountable for
the use or application by the Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not the Trustee,
Paying Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by 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
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its 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(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
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As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium or Make-Whole Amount, if
any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
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(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
or such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor
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Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company, or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and 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
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be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[BANK], as Trustee,
By: __________________________________
as Authenticating Agent
By: __________________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after __________ of each
year commencing with the first __________ after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such
__________ if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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SECTION 704. THE COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in Writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, PROVIDED, HOWEVER, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (i) either the Company shall be the continuing entity, or the successor
entity shall be an entity organized and existing under the laws of the United
States or a State thereof and such successor entity shall expressly assume the
due and punctual payment of the principal of (and premium or Make-Whole Amount,
if any) and any interest (including all Additional Amounts, if any, payable
pursuant to Section 1012) on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such entity and (ii) immediately after
giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result thereof as having been
incurred by the Company or such Subsidiary at the time or such transaction, no
Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR ENTITY. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in the event of a
lease, shall be relieved of any further obligation under this Indenture and the
Securities. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and,
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upon the order of such successor entity, instead of the Company, and subject
to all the terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); PROVIDED, HOWEVER, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
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particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions or this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into Common
Stock or Preferred Stock, as the case may be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to close the Indenture with respect to the authentication and
delivery of additional sums of Securities or to qualify, or maintain
qualification of, the Indenture under the TIA; or
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(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; PROVIDED, HOWEVER, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts pursuant to
Section 1012 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security or Make-Whole Amount, if any, that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof 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), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1013, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; or
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(4) modify any of the provisions of Section 1602 which relate to the
subordination of the Securities.
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 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 Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM (IF ANY), MAKE-WHOLE AMOUNT
(IF ANY), INTEREST AND ADDITIONAL AMOUNTS. The Company covenants and agrees for
the benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on and any Additional Amounts payable in respect of the Securities of
that series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any, payable
as provided in Section 1012 in respect of principal of (or premium or Make-Whole
Amount, if any, on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the Company,
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, the City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1012) or conversion; PROVIDED, HOWEVER, that if the
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or 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,
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where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1012) or conversion at the offices specified in the Security, in
London, England, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium or Make-Whole Amount and
interest on any Bearer Security (including any Additional Amounts payable on
Securities of such series pursuant to Section 1012) shall be made at the office
of the Company's Paying Agent in the Borough of Manhattan, the City of New York,
if (but only if) payment in Dollars of the full amount of such principal,
premium or Make-Whole Amount, interest or Additional Amounts, as the case may
be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
the City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the
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Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium or Make-Whole Amount, if any), or interest on
or Additional Amounts in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, on or before each due date of the
principal of (and premium or Make-Whole Amount, if any), or interest on or
Additional Amounts in respect of, any Securities of that series, deposit with a
Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or Make-Whole
Amount or interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided.
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest, and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any
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Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium or Make-Whole Amount, if
any) or interest on, or any Additional Amounts in respect of, any Security of
any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any), interest or Additional Amounts has become
due and payable shall be paid to the Company upon Company Request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium or Make-Whole Amount, if
any) or interest on, or any Additional Amounts in respect of, any Security,
without interest thereon, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. [Omitted].
SECTION 1005. [Omitted].
SECTION 1006. EXISTENCE. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1007. MAINTENANCE OF PROPERTIES. The Company will cause all of
its properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company or any Subsidiary from selling or otherwise disposing for value its
properties in the ordinary course of its business.
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SECTION 1008. INSURANCE. The Company will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with financially sound
and reputable insurers.
SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (i) whose amount, applicability or validity is
being contested in good faith by appropriate proceedings or (ii) for which the
Company has set apart and maintains an adequate reserve.
SECTION 1010. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will,
to the extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to such Section 13 or
15(d) if the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Company would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if the Company were subject to such Sections and
(y) if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION 1011. STATEMENT AS TO COMPLIANCE. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1011, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1012. ADDITIONAL AMOUNTS. If any Securities of a series provide
for the payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as
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contemplated by Section 301. Whenever in this Indenture there is mentioned,
in any context except in the case of Section 502(1), the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided by
the terms of such series established pursuant to 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 Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal, premium 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, premium and interest with respect to the Securities of a
series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them or in reliance on
any Officers' Certificate furnished pursuant to this Section or in reliance on
the Company's not furnishing such an Officers' Certificate.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1010, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the
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extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less
than all the Securities of any series issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the
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Redemption Date, unless a shorter period is specified by the terms of such
series established pursuant to Section 301, to each Holder of Securities to
be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company and the Trustee for such series and any Paying
Agent is furnished;
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(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made;
(10) the CUSIP number of such Security, if any; and
(11) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate,
and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At least one Business Day
prior to any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and PROVIDED, FURTHER, that, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
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Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium or Make-Whole Amount, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security which
is to be redeemed only in part (pursuant to the provisions of this Article)
shall be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of the same series,
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
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
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the redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
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SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that at least one Business Day prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as it 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) or, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; PROVIDED, HOWEVER, that such
telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
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SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series 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 portion thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any Security for repayment in accordance with such provisions, together with
coupons, if any, appertaining thereto maturing after the Repayment Date, the
principal amount of such Security so to be repaid by the Company, together with
accrued interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and PROVIDED,
FURTHER, that, in the case of Registered Securities, installments of interest,
if any, whose Stated Maturity is on or prior to the Repayment Date shall be
payable (but with interest thereon, unless the Company shall default in the
payment thereof) to the Holders of such securities, or one or more Predecessor
Securities, registered as such at the close of business relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there shall be furnished to it such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; PROVIDED, HOWEVER, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any Registered
Security which is to be repaid in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized
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denomination specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Company's
obligations with respect to such Securities under Section 305, 306, 1002 and
1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1012, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any coupons appertaining thereto.
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SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Section 1004 to 1010, inclusive and if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and coupons appertaining thereto on and after the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"),
and such Securities and any coupons appertaining thereto shall thereafter be
deemed to be not "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with Sections 1004 to 1010, inclusive, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any Section
or such other covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a default or an Event of
Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Sated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with the terms will
provide, not later than one day before the due date of any payment of
principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Securities and any coupons appertaining thereto, money in an
amount, or (3) a combination thereof, any case, in an amount, sufficient
without consideration of any reinvestment of such principal and interest,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of
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such principal or installment of principal or interest and any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
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(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith 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 with the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the deposit
pursuant to Section 1404(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect to the currency or currency unit in which the
deposit pursuant to Section 1404(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium or Make-Whole Amount, if any), and interest, if any,
on such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the currency or currency unit in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable market
exchange rate for such currency of currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency or currency unit in effect (as nearly as feasible) at
the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received 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, subjection to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as
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provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and 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 by Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In the case at any time the Company pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the actin proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the notice
of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice as provided in
subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
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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 o such series; PROVIDED, HOWEVER,
that if any action is to 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 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 any be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjoined meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; PROVIDED,
HOWEVER, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specific percentage, which is less than a
majority, in principal amount the Outstanding Securities or 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 act that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirements for such meeting;
and
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(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 be in the manner specified in Section
104 or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall been called by the Company or
by Holders of Securities provided in Section 1502(b), in which case the Company
or the Holders of Securities of the series calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for such $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
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
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Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Holders of any or every series of Securities may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such actin shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof and execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Article.
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS. Subject to Article Six,
the execution of any instrument by a Holder or his agent or proxy may be proved
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in any manner as shall be satisfactory to the Trustee.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. SECURITIES SUBORDINATED TO SENIOR DEBT.
(a) The Company agrees, and each Holder of Securities by his acceptance
thereof likewise agrees, that the payment of the principal of, premium, if any,
and interest on the Securities (all of the foregoing, a "Payment or
Distribution") is subordinated and junior in right of payment, to the extent and
in the manner provided in this Article 16, to the prior payment in full in cash
of all Senior Debt whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed.
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A Payment or Distribution shall include any asset of any kind or character,
and may consist of cash, securities or other property, by set-off or otherwise,
and shall include, without limitation, any purchase, redemption or other
acquisition of the Securities or the making of any sinking fund payments
pursuant to this Indenture (including, without limitation, any deposit pursuant
to Article 12 hereof).
(b) The Senior Debt of the Company shall continue to be Senior Debt and
entitled to the benefit of these subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to
refinancing of the Senior Debt.
(c) All the provisions of this Indenture and the Securities shall be
subject to the provisions of this Article 16 so far as they may be applicable
thereto, except that nothing in this Article 16 shall apply to claims for, or
payments to, the Trustee under or pursuant to Section 606.
(d) No right of any holder of any Senior Debt to enforce subordination as
herein provided shall at any time or in any way be affected or impaired by any
failure to act on the part of the Company, any Paying Agent, the Holders of the
Securities, the Trustee or the holders of the Senior Debt, or by any
noncompliance by the Company, any Paying Agent, the Holders of the Securities or
the Trustee with any of the terms, provisions and covenants of the Securities or
this Indenture, regardless of any knowledge thereof that any such holder of
Senior Debt may have or be otherwise charged with.
(e) In the event that the Securities are declared due and payable before
their expressed maturity because of the occurrence of a default hereunder, the
Company will give prompt notice in writing of such happening to the holders of
Senior Debt.
SECTION 1602. COMPANY NOT TO MAKE PAYMENTS WITH RESPECT TO SECURITIES IN
CERTAIN CIRCUMSTANCES. No Payment or Distribution shall be made by the
Company, the Trustee or the Paying Agent on account of principal of (or premium,
if any) or interest on the Securities, whether upon stated maturity, upon
redemption or acceleration, or otherwise, or on account of the purchase or other
acquisition of Securities, whether upon stated maturity, upon redemption or
acceleration, or otherwise, if there shall have occurred and be continuing a
default with respect to any Senior Debt permitting the acceleration thereof or
with respect to the payment of any Senior Debt and (a) such default is the
subject of a judicial proceeding or (b) notice of such default in writing or by
telegram has been given to the Company by any holder or holders of any Senior
Debt, unless and until the Company shall have received written notice from such
holder or holders that such default or event of default shall have been cured or
waived or shall have ceased to exist.
Upon any acceleration of the principal of the Securities or any payment by
the Company or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding up or liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Senior Debt shall first be paid in
full in cash, or payment thereof provided for to the satisfaction of the holders
thereof, before any
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Payment or Distribution is made on account of the redemption price or
principal of (and premium, if any) or interest on the Securities; and
(subject to the power of a court of competent jurisdiction to make other
equitable provision, which shall have been determined by such court to give
effect to the rights conferred in this Article upon the Senior Debt and the
holders thereof with respect to the Securities or the Holders thereof or the
Trustee, by a lawful plan of reorganization or readjustment under applicable
law) upon any such dissolution or winding up or liquidation or
reorganization, any Payment or Distribution by the Company or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such Payment or Distribution directly to the holders
of Senior Debt of the Company or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior
Debt in full in cash, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt, before any Payment or
Distribution is made to the Holders of the Securities or to the Trustee,
except that the Trustee will have a lien for the payment of its fees and
expenses.
In the event that, notwithstanding the foregoing, any Payment or
Distribution by the Company of any kind or character, whether in cash, property
or securities, prohibited by the foregoing, shall be received by the Trustee or
the Holders of the Securities before all Senior Debt is paid in full in cash, or
provision is made for such payment to the satisfaction of the holders thereof,
and if such fact shall then have been or thereafter be made known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such Payment or Distribution shall be paid over or delivered to
the holders of Senior Debt or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Debt may have been issued, as their respective interests
may appear, for application to the payment of all Senior Debt remaining unpaid
to the extent necessary to pay all Senior Debt in full in cash, after giving
effect to any concurrent Payment or Distribution to or for the holders of such
Senior Debt, and, until so delivered, the same shall be held in trust by any
Holder of a Security as the property of the holders of Senior Debt.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article Five shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section if such other Person shall, as a
part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eight. Nothing in this Section shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 606.
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<PAGE>
The holders of Senior Debt may, at any time and from time to time, without
the consent of or notice to the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the obligations of the Holders of the Securities hereunder to the
holders of Senior Debt: (i) change the manner, place or terms of payment or
change or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend in any manner Senior Debt or any instrument evidencing the same
or any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
collection of Senior Debt; and/or (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 1603. SUBROGATION OF SECURITIES. Subject to the payment in full
in cash of all amounts then due (whether by acceleration of the maturity thereof
or otherwise) on account of all Senior Debt at the time outstanding, the Holders
of the Securities shall be subrogated to the rights of the holders of Senior
Debt to receive Payments or Distributions of cash, property or securities of the
Company applicable to the Senior Debt until the principal of (and premium, if
any) and interest on the Securities shall be paid in full; and, for the purposes
of such subrogation, no Payments or Distributions to the holders of Senior Debt
to which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Debt by Holders of the
Securities or the Trustee, shall, as between the Company, the Company's
creditors other than holders of Senior Debt, and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior Debt.
It is understood that the provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Debt, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Debt, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 602, and the
Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which any dissolution, winding
up, liquidation or reorganization proceedings are pending, or certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of
-81-
<PAGE>
Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 1604. AUTHORIZATION BY HOLDERS. Each holder of a Security by his
acceptance thereof authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate, as between the Holder
of the Security and the holders of Senior Debt, the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes including, without limitation, to execute, verify, deliver and file any
proofs of claim which any holder of Senior Debt may at any time require in order
to prove and realize upon any rights or claims pertaining to the Securities and
to effectuate the full benefit of the subordination contained herein. Upon
failure of the Trustee so to do, any such holder of Senior Debt shall be deemed
to be irrevocably appointed the agent and attorney-in-fact of the Holder to
execute, verify, deliver and file any such proofs of claim.
SECTION 1605. NOTICES TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to it which would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article, unless and until a
Responsible Officer of the Trustee shall have received at its Corporate Trust
Office written notice thereof from the Company or a holder or holders of Senior
Debt or from any trustee or agent therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 602,
shall be entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that if a Responsible Officer of the Trustee shall not have received at
least three Business Days prior to the date upon which by the terms hereof any
such moneys may become payable for any purpose (including, without limitation,
the payment of the principal of (premium, if any) or interest on any Security)
with respect to such moneys the notice provided for in this Section, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have the full power and authority to receive such moneys and to apply the same
to the purpose for which they were received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
The Trustee shall be entitled to rely conclusively on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior Debt
(or a trustee on behalf of such holder) to establish that such notice has been
given by a holder of Senior Debt or a trustee or agent on behalf of any such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this
-82-
<PAGE>
Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1606. TRUSTEE'S RELATION TO SENIOR DEBT. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article in respect of any Senior Debt at any time held by it, to the same extent
as any other holder of Senior Debt, and nothing in Section 311 of the TIA or in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holder if it shall
mistakenly pay over or distribute to Holders of the Securities or the Company or
any other Person money or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 1607. NO IMPAIRMENT OF SUBORDINATION. No right of any present or
future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company, the Trustee or the Holder of any of the
Securities or by any act, or failure to act, in good faith, by any such holder
of Senior Debt, or by any noncompliance by the Company, the Trustee or the
Holder of any of the Securities with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
SECTION 1608. ARTICLE 16 NOT TO PREVENT EVENTS OF DEFAULT. The failure to
make a payment on account of principal of (premium, if any) or interest on the
Securities by reason of any provision in this Article 16 shall not be construed
as preventing the occurrence of an Event of Default with respect to such series
under Section 501.
SECTION 1609. PAYING AGENTS OTHER THAN THE TRUSTEE. In any case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
16 shall in such case (unless the context shall otherwise require) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article 16
in addition to or in place of the Trustee.
SECTION 1610. SECURITIES SENIOR TO SUBORDINATED INDEBTEDNESS. The
indebtedness represented by the Securities will be senior and prior in right of
payment to all Subordinated Indebtedness, to the extent and in the manner
provided in such Subordinated Indebtedness.
*****
-83-
<PAGE>
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date and year first above written.
CENTERPOINT PROPERTIES CORPORATION
By: _________________________________
Title:
[BANK], as Trustee
By: _________________________________
Title: Vice President
ATTEST:
By: _______________________________
Title: Assistant Vice President
-84-
<PAGE>
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
On the __th day of ___________ , 19____, before me personally came to me
known, _________________________ who, being by me duly sworn, did depose and
say that he/she resides in _________________________, that he/she is the
_________________________ of CenterPoint Properties Corporation, one of the
parties described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of said corporation.
[Notarial Seal]
_______________________________________
Notary Public
COMMISSION EXPIRES
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
On the __th day of ________________, 19____, before me personally came
to me known, _________________________ who, being by me duly sworn, did
depose and say that he/she resides in _________________________, that he/she
is the _________________________ of _____________________________, one of the
parties described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of said corporation.
[Notarial Seal]
_______________________________________
Notary Public
COMMISSION EXPIRES
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 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 CenterPoint Properties Corporation 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 the purpose 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 required the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the 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
<PAGE>
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:
-2-
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
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 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 CenterPoint Properties
Corporation 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 "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
<PAGE>
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 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 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: ___________________________________
-2-
<PAGE>
Exhibit 12
CENTERPOINT PROPERTIES CORPORATION
Computation Of Ratio Of Earnings To Fixed Charges
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
------------- -----------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $11,169 $4,976 $8,212 $2,359 ($4,930) ($1,175) ($382)
Add interest expense (1) 8,648 10,028 12,985 12,157 4,111 2,638 2,508
------- ------- ------- ------- ------- ------- ------
Available earnings (loss) (2) $19,817 $15,004 $21,197 $14,516 ($819) ($1,463) $2,126
------- ------- ------- ------- ------- ------- ------
------- ------- ------- ------- ------- ------- ------
Fixed Charges:
Interest expense $8,648 $10,028 $12,985 $12,157 $4,111 $2,638 $2,508
Capitalized interest 82 20 20 63 470 831 1,022
------- ------- ------- ------- ------- ------- ------
Total Fixed Charges $8,730 $10,048 $13,005 $12,220 $4,581 $3,469 $3,530
------- ------- ------- ------- ------- ------- ------
------- ------- ------- ------- ------- ------- ------
Ratio of earnings to
Fixed Charges (3) 2.27 1.49 1.63 1.19 - - -
------- ------- ------- ------- ------- ------- ------
------- ------- ------- ------- ------- ------- ------
</TABLE>
CENTERPOINT PROPERTIES CORPORATION
Computation Of Ratio Of Earnings To Combined Fixed
Charges And Preferred Stock Dividends
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
------------- -----------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $11,169 $4,976 $8,212 $2,359 ($4,930) ($1,175) ($382)
Add interest expense (1) 8,648 10,028 12,985 12,157 4,111 2,638 2,508
------- ------- ------- ------- ------- ------- ------
Available earnings (loss) (2) $19,817 $15,004 $21,197 $14,516 ($819) ($1,463) $2,126
------- ------- ------- ------- ------- ------- ------
------- ------- ------- ------- ------- ------- ------
Fixed Charges:
Interest expense $8,648 $10,028 $12,985 $12,157 $4,111 $2,638 $2,508
Preferred stock dividend 2,841 89 1,002
Capitalized interest 82 20 20 63 470 831 1,022
------- ------- ------- ------- ------- ------- ------
Total Fixed Charges $11,571 $10,137 $14,007 $12,220 $4,581 $3,469 $3,530
------- ------- ------- ------- ------- ------- ------
------- ------- ------- ------- ------- ------- ------
Ratio of earnings to
Fixed Charges (3) 1.71 1.48 1.51 1.19 - - -
------- ------- ------- ------- ------- ------- ------
------- ------- ------- ------- ------- ------- ------
</TABLE>
- -------------------------------------
NOTES:
(1) Interest expense includes amortization of debt expense.
(2) Interest portion of rental expense is not calculated because annual rental
expense for the Company is not significant.
(3) The ratio of earnings to fixed charges for the years ended December 31,
1991 through December 31, 1993, was less than one to one. The approximate
dollar amounts necessary to cover the deficiency in those periods were as
follows: 1993--$5,400; 1992--$2,006; 1991--$1,404.
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-3 of our reports dated March 8, 1996 on our audits of the consolidated
financial statements and financial statement schedules of CenterPoint Properties
Corporation and Subsidiaries as of December 31, 1995 and 1994 and for each of
the three years in the period ended December 31, 1995, which report is included
in the Annual Report on Form 10-K. We also consent to our report dated
September 30, 1996 on our audit of the combined statements of revenue and
certain expenses of the Related Party Properties for the three years in the
period ended December 31, 1995, which is included in the Form 8-K/A No. 1 filed
November 27, 1996. We also consent to our report dated October 15, 1996 on our
audits of the individual and combined statements of revenue and certain expenses
of The Northlake Property and the Other Acquisition Properties for the year
ended December 31, 1995, which is included in the Form 8-K/A No. 1 filed
November 27, 1996. We also consent to the reference to our firm under the
caption "Experts."
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
December 18, 1996
