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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): AUGUST 1, 1997 (JULY 30, 1997)
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JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 1-12844 58-1468053
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
3340 PEACHTREE ROAD, N.E.
SUITE 1530
ATLANTA, GEORGIA 30326
(Address of Principal Executive Offices) (Zip Code)
(404) 262-3252
(Registrant's Telephone Number, including Area Code)
NOT APPLICABLE
(Former Name)
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Exhibit Index located on Page 4
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ITEM 5. OTHER EVENTS.
On July 30, 1997, the Company entered into an underwriting
agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch") and a Terms Agreement with Merrill Lynch, BT Securities Corporation and
Smith Barney Inc. (collectively, the "Underwriters") relating to the sale by the
Company to the Underwriters of the Company's 6.80% Notes due August 1, 2004 (the
"2004 Notes") and 6.95% Notes due August 1, 2007 (the "2007 Notes" and, together
with the 2004 Notes, the "Notes") in aggregate principal amounts of $75,000,000
and $85,000,000, respectively, which is scheduled to close on August 4, 1997. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission and was declared effective on March 26, 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.1 Underwriting Agreement, dated July 30, 1997, by and between the Company
and Merrill Lynch, Pierce, Fenner & Smith Incorporated
1.2 Terms Agreement, dated July 30, 1997, by and between the Company and the
Underwriters
4.1 Indenture, dated as of July 15, 1997, by the Company to First Union National
Bank, as Trustee
4.2 First Supplemental Indenture, dated as of July 31, 1997, by the Company to
First Union National Bank, as Trustee
4.3 Form of 6.80% Global Note Due August 1, 2004
4.4 Form of 6.95% Global Note Due August 1, 2007
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability
Company
8 Tax Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
</TABLE>
2
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<TABLE>
<S> <C>
23 Consent of Waller Lansden Dortch & Davis, A Professional Limited Liability
Company (included in Exhibits 5 and 8)
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of First Union National Bank, pertaining
to the Company's 6.80% Notes due August 1, 2004
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, of First Union National Bank, pertaining to the
Company's 6.95% Notes due August 1, 2007
</TABLE>
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JDN REALTY CORPORATION
By: /s/ William J. Kerley
--------------------------
William J. Kerley
Chief Financial Officer
Date: August 1, 1997
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.1 Underwriting Agreement, dated July 30, 1997, by and between the Company
and Merrill Lynch, Pierce, Fenner & Smith Incorporated
1.2 Terms Agreement, dated July 30, 1997, by and between the Company and the
Underwriters
4.1 Indenture, dated as of July 15, 1997, by the Company to First Union National
Bank, as Trustee
4.2 First Supplemental Indenture, dated as of July 31, 1997, by the Company to
First Union National Bank, as Trustee
4.3 Form of 6.80% Global Note Due August 1, 2004
4.4 Form of 6.95% Global Note Due August 1, 2007
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability
Company
8 Tax Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
23 Consent of Waller Lansden Dortch & Davis, A Professional Limited Liability
Company (included in Exhibits 5 and 8)
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, of First Union National Bank, pertaining to the
Company's 6.80% Notes due August 1, 2004
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939, as amended, of First Union National Bank, pertaining to the
Company's 6.95% Notes due August 1, 2007
</TABLE>
5
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EXHIBIT 1.1
JDN REALTY CORPORATION
(a Maryland corporation)
Common Stock, Common Stock Warrants,
Preferred Stock and Debt Securities
UNDERWRITING AGREEMENT
July 30, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
JDN Realty Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell up to $400 million of its (i) shares of
common stock, $.01 par value per share (the "Common Stock"), (ii) warrants to
purchase shares of Common Stock (the "Warrants"), (iii) shares of preferred
stock, par value $.01 per share (the "Preferred Stock") or (iv) senior or
subordinated debt securities (the "Debt Securities"), or any combination
thereof, from time to time, in or pursuant to one or more offerings on terms to
be determined at the time of sale.
The Preferred Stock will be issued in one or more series and
each series of Preferred Stock may vary, as applicable, as to the title,
specific number of shares, rank, stated value, liquidation preference, dividend
rate or rates (or method of calculation), dividend payment dates, redemption
provisions, sinking fund requirements, conversion provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as
senior indebtedness (the "Senior Debt Securities") under an indenture or
subordinated indebtedness (the "Subordinated Debt Securities") under an
indenture, each between the Company and one or
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more trustees (each a "Trustee") to be negotiated by the Company and such
Trustee (the "Indenture"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities) and any other variable terms
established by or pursuant to the applicable Indenture.
Each issue of Warrants will be issued pursuant to a separate
warrant agreement (each, a "Warrant Agreement") between the Company and the
warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise prices(s), expiration date(s) and terms of
the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock,
Warrants, Preferred Stock, or Debt Securities, or any combination thereof,
initially issuable by the Company and "Underlying Securities" shall mean the
Common Stock, Preferred Stock, or Debt Securities issuable upon conversion of
the Preferred Stock or Debt Securities, as applicable.
Whenever the Company determines to make an offering of
Securities through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), or through an underwriting syndicate managed by
Merrill Lynch, the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, Merrill Lynch and such other underwriters, if any, selected
by Merrill Lynch (the "Underwriters," which term shall include Merrill Lynch,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other than Merrill Lynch acting as
co-manager in connection with such offering, the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. In addition, if applicable, such Terms Agreement
shall specify whether the Company has agreed to grant to the Underwriters an
option to purchase additional Securities to cover over-allotments, if any, and
the number or aggregate principal amount, as the case may be, of Securities
subject to such option (the "Option Underwritten Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of any Option Underwritten Securities. The
Terms Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the form of an exchange of any standard form of written
telecommunication between the Company and Merrill Lynch, acting for itself and,
if applicable, as representative of any other
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Underwriters. Each offering of Underwritten Securities through Merrill Lynch
as sole Underwriter or through an underwriting syndicate managed by Merrill
Lynch will be governed by this Underwriting Agreement, as supplemented by the
applicable Terms Agreement.
As used herein the term "Properties" refers to the real
properties in which the following entities own an interest: the Company, JDN
Development Company, Inc. ("JDN Development"), Subsidiaries of the Company
(defined below) or JDN Development and joint ventures (including limited
liability companies) in which any of the Company, JDN Development or any of
their Subsidiaries own an interest. As used hereinafter, the term "Subsidiary"
means a corporation or a partnership a majority of the outstanding equity of
which is owned or controlled, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-22339) covering, among other Securities, the Underwritten Securities, under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such post-effective amendments thereto as may be
required prior to the execution of this Underwriting Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), is referred to herein as the "Registration Statement;" and the
prospectus constituting a part of the Registration Statement at the time it was
declared effective by the Commission and the prospectus supplement relating to
the offering of the Underwritten Securities, in the form furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus;" provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of this Underwriting
Agreement; provided, further, that if the Company files a registration statement
with the Commission pursuant to Section 462(b) of the 1933 Act Regulations (the
"Rule 462 Registration Statement"), then, after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462 Registration
Statement. A "preliminary prospectus" shall be deemed to refer to any prospectus
as supplemented that omitted information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the Terms Agreement. For purposes of this Underwriting
Agreement, all references to the Registration Statement, Prospectus, or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus
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shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be; and all
references in this Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties
(a) Representations and Warranties by the Company. The Company
represents and warrants to Merrill Lynch, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below), and if applicable, as of each Date of
Delivery (as defined below) (in each case a "Representation Date") as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement, any Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus, at the Closing Time and at each Date of
Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company elects to rely upon Rule 434
of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement or the
Prospectus.
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Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus supplement and the
Prospectus delivered to the Underwriters for use in connection with the
offering of Underwritten Securities will, at the time of such delivery,
be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
or required by Regulation S-T.
(2) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(3) Independent Accountants. The accountants who
audited the financial statements and supporting schedules
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(4) Financial Statements. The financial statements of
the Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of income, statement of
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. In addition, any pro
forma financial statements of the Company and its subsidiaries and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, with the exception of
adjustment (6) in footnote 14 to the Company's financial statements for
the year ending
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and as of December 31, 1994 included in the Company's Form 10-K for the
year ending December 31, 1996, and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the
ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its Subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its Subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's common
stock or preferred stock, in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under, or as contemplated under, this
Underwriting Agreement and the Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each Subsidiary
has been duly organized and is validly existing and in good standing
under the laws of the jurisdiction of its organization, has the
requisite power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation, partnership or other organization
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding equity securities of each Subsidiary have been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through Subsidiaries (except in the
case of JDN Development, the outstanding voting common stock of which
is owned 99% by J. Donald Nichols and 1% by the Company, and the
outstanding non-voting common stock of which is owned 100% by the
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Company), free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. None of the outstanding equity
securities of any Subsidiary were issued in violation of preemptive or
other similar rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding shares
of capital stock of the Company is as set forth under such section
(except for subsequent issuances thereof, if any, contemplated under
this Registration Statement, pursuant to reservations, agreements or
employee benefit plans, stock option or purchase plans or dividend
reinvestment plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock were issued in violation of
preemptive or other similar rights of any securityholder of the
Company.
(9) Qualification as a REIT. The Company is
organized in conformity with the requirements for qualification as a
real estate investment trust ("REIT") under the Internal Revenue Code
of 1986, as amended (the "Code"), and its method of operation enables
it to meet the requirements for taxation as a REIT under the Code for
its taxable periods beginning or otherwise including the period after
the Closing Date.
(10) Authorization of this Underwriting Agreement
and Terms Agreement. This Underwriting Agreement has been, and
the applicable Terms Agreement as of the date thereof will have
been, duly authorized, executed and delivered by the Company.
(11) Authorization of Common Stock. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Common Stock, such Underwritten Securities have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and delivered by the Company pursuant to this
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any securityholder of the
Company. No holder of such Underwritten Securities will be subject to
personal liability by reason of being such a holder.
(12) Authorization of Preferred Stock. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock, such Underwritten Securities have
been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and
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such Terms Agreement. The applicable Preferred Stock, when issued and
delivered by the Company pursuant to this Underwriting Agreement and
such Terms Agreement against payment of the consideration therefor,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of
the Company. No holder of Preferred Stock will be subject to personal
liability by reason of being such a holder. The applicable Articles
Supplementary for such Preferred Stock will be in full force and effect
prior to the Closing Time.
(13) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, such Underwritten
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered against payment
of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting rights of creditors generally or by general equitable
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such
Underwritten Securities will be in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
applicable Indenture.
(14) Authorization of the Indentures. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Senior Debt Securities and/or Subordinated Debt
Securities, or if Preferred Stock is convertible into Debt Securities,
each applicable Indenture has been duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting rights of creditors generally or by general equitable
principles.
(15) Authorization of Warrants. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Warrants, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for the applicable Warrant
Agreement and delivered against payment of the consideration therefor
specified in such Terms Agreement, will
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constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by such Warrant Agreement and
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(16) Authorization of Warrant Agreement. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Warrants, each applicable Warrant Agreement has been,
or prior to the issuance of such Underwritten Securities will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally
or by general equitable principles.
(17) Authorization of Underlying Securities. If the
Underlying Securities related to the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Common Stock or
Preferred Stock, such Underlying Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized and
reserved for issuance by the Company upon exercise of the Warrants, or
upon conversions of the related Preferred Stock, Senior Debt Securities
or Subordinated Debt Securities, as applicable. If the Underlying
Securities include Common Stock or Preferred Stock, such Underlying
Securities, when issued upon such exercise or conversion, as
applicable, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company or under
any agreement to which the Company or any of its subsidiaries is a
party, or otherwise. No holder of such Common Stock or Preferred Stock
will be subject to personal liability by reason of being such a holder.
If the Underlying Securities related to the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior
Debt Securities and/or Subordinated Debt Securities, such Underlying
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized for issuance by the Company upon conversion
of the related Preferred Stock. Such Underlying Securities, when issued
and authenticated in the manner provided for in the applicable
Indenture and delivered in accordance with the terms of the related
Preferred Stock, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement therefor may be limited
by (A) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
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(18) Descriptions of the Underwritten Securities,
Underlying Securities, Indentures and Warrant Agreement. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture and Warrant Agreement, as of
the date of the Prospectus, and any Underlying Securities, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(19) Absence of Defaults and Conflicts. Neither the
Company nor any of its Subsidiaries is in violation of its charter or
by-laws or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Underwriting Agreement, the applicable
Terms Agreement, and each applicable Indenture, Warrant Agreement and
any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any assets, properties or operations of the Company or any Subsidiary
pursuant to any Agreements and Instruments except for such conflicts,
breaches, defaults, events or liens, charges or encumbrances that would
not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company or any of its Subsidiaries, nor will such action result in any
violation of applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
of its Subsidiaries or any of their assets, properties or operations
except for such violations that would not result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any Subsidiary.
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(20) Absence of Labor Dispute. No labor dispute with
the employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any Subsidiary's principal customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Effect.
(21) Absence of Proceedings. There is not pending or
threatened any action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic
or foreign, now pending, or to the knowledge of the Company threatened,
against or affecting the Company or any Subsidiary thereof which is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated under this Underwriting
Agreement, or the performance by the Company of its obligations
hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary thereof
is a party or of which any of their respective assets, properties or
operations is the subject which are not described in the Registration
Statement and the Prospectus or a document incorporated by reference
therein, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(22) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and/or filed as required.
(23) Absence of Further Requirements. No filing with,
or authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Underwriting Agreement or the applicable
Terms Agreement or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or any
applicable Indenture or Warrant Agreement, except for the registration
of the Underwritten Securities under the 1933 Act, compliance with the
listing requirements of the New York Stock Exchange (if applicable) or
under state securities laws, all of which have been or will be effected
in accordance with this Agreement.
(24) Possession of Intellectual Property. The Company
and its Subsidiaries own or possess all adequate trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its Subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest
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<PAGE> 12
of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(25) Possession of Licenses and Permits. The Company
and its Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them. The Company and its Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries has received
any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(26) Title to Property. The Company and its
Subsidiaries have good and marketable title to all of the properties
and assets reflected in the financial statements (or as described in or
incorporated by reference into the Registration Statement or
Prospectus), in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except (A) as otherwise stated in the Registration Statement and
the Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries. Except as stated in the Registration Statement
and the Prospectus and with respect to (i) American Hospitality
Corporation as tenant under the Ground Lease Agreement, dated April
1986, between Taco Bell Corp. and Cherokee Investors, Ltd., as assigned
and amended from time to time (the "Taco Bell Lease") which has the
right under the Taco Bell Lease to purchase the property that is
demised by the Taco Bell Lease (the "Demised Premises") within the
Property known as the Tullahoma Shopping Center for the "mutually
agreeable price" if the Demised Premises are "purchased by the
landlord," (ii) the option to purchase the membership interest of JDN
Development Company's Subsidiary under the Operating Agreement for
Dogwood Drive LLC, (iii) the option to purchase the membership interest
of JDN Development Company under the Operating Agreement for Metro
Station Development Company, LLC, and (iv) other Properties that,
singly or in the aggregate, are not material to the business of the
Company and its Subsidiaries considered as one enterprise, no person
has an option or right of first refusal to purchase all or part of any
Property or any interest therein. All of the leases and subleases
material to the business of the Company and its Subsidiaries considered
as one enterprise, and under which the Company or any Subsidiary holds
Properties described in the Prospectus, are in full force and effect,
and neither the Company nor any of its Subsidiaries has received any
notice of any material claim of any
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<PAGE> 13
sort that has been asserted by anyone adverse to the rights of the
Company or any of its Subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such Subsidiary of the continued possession of the leased or
subleased premises under any such lease or sublease.
(27) Leases. Each lease of real property by the
Company as lessor is the legal, valid and binding obligation of the
lessee in accordance with the terms of such lease (except for such
leases as are not material to the business of the Company and except
that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought and to the Federal Bankruptcy Code). The rents with respect to
the Properties which at present are or remain due and unpaid for more
than 30 days are not payable under leases such that, were no further
rental payments to be received by the Company under such leases, there
would result a Material Adverse Effect. The Company has no reason to
believe that any tenant which is responsible for aggregate annual
rental payments in excess of $500,000 under all of its leases at the
Properties is not financially capable of performing its obligations
thereunder or intends to terminate any of its leases prior to
expiration thereof. The Company occupies its leased properties under
valid and binding leases conforming in all material respects to any
description thereof set forth in or incorporated by reference into the
Registration Statement or Prospectus.
(28) Commodity Exchange Act. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Debt Securities or if any related Underlying Securities include
Debt Securities, as the case may be, such Debt Securities, upon
issuance, will be excluded or exempted under, or beyond the purview of,
the Commodity Exchange Act, as amended (the "Commodity Exchange Act"),
and the rules and regulations of the Commodity Futures Trading
Commission under the Commodity Exchange Act (the "Commodity Exchange
Act Regulations").
(29) Investment Company Act. The Company is not, and
upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(30) Environmental Laws. Except as disclosed in or
incorporated by reference in the Prospectus, the Company has no
knowledge that any Property has ever been used for the disposal,
release, handling, treatment, or storage of any Hazardous Material in
any quantity or form that would reasonably necessitate any responses or
corrective action, including any such action under any Hazardous
Material Law; the Company has no knowledge that any Property has ever
been used, and neither the Company (including its predecessor, JDN
Enterprises, Inc. ("Enterprises")) nor any owner of a Property in which
J. Donald Nichols had or has a direct or indirect interest ("JDN
Property") has used any JDN Property, in any manner other than in full
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<PAGE> 14
compliance with all Hazardous Material Laws; none of the Company
(including Enterprises), the owner of any JDN Property or, to the
Company's knowledge, any owner of any other Property has ever received
written or oral notice or other communication of pending or threatened
claims, actions, suits, proceedings or investigations related to any
Property regarding (i) the disposal or release of solid, liquid or
gaseous waste into the environment, (ii) the treatment, storage,
disposal, release or other handling of any Hazardous Material, (iii)
the placement of structures or materials into waters of the United
States, (iv) the presence of any Hazardous Material in any building or
structure located on any Property, (v) the presence of any Hazardous
Material related to the ownership, use, condition, or operation of any
Property, or (vi) any alleged violation of any Hazardous Material Law;
other than knowledge of (1) a remediation agreement (relating to a
leaking underground storage tank) entered into between the State of
Georgia and the owner of the Stop `n' Go site adjacent to the QuikTrip
parcel located at the Company's Lawrenceville Property, (2) a
remediation agreement (relating to soil and groundwater contamination)
entered into between the state of North Carolina and the owner of a
tract adjoining the Company's Greenville, North Carolina Property, (3)
a limited Phase II environmental assessment recommendation that
impacted soils be remediated at the Greensboro, North Carolina
Property, and (4) a corrective action plan required by the State of
Georgia (relating to a release from underground storage tanks) of the
owner of the SAV-A-TON Gasoline Station site near the Company's Ft.
Oglethorpe, Georgia property, the Company has no knowledge that any
soil or water in or adjacent to any Property is contaminated by any
Hazardous Material; to the Company's knowledge, there are no
underground tanks or any other underground storage facilities located
on any Property, and to the Company's knowledge, except as disclosed in
or incorporated by reference into the Prospectus, there have never been
such tanks or facilities on any Property.
Except as disclosed in or incorporated by reference into the
Prospectus, the Company has no knowledge that any real property
previously owned by the Company (including Enterprises) or by any owner
of the JDN Properties (collectively, the "Previously Owned Properties")
has ever been used for the disposal, release, handling, treatment or
storage of any Hazardous Material in any quantity or form that would
reasonably necessitate any responses or corrective action, including
any such action under any Hazardous Material Law; the Company has no
knowledge that any Previously Owned Property has ever been used and
neither the Company (including Enterprises) nor any owner of a JDN
Property has used any Previously Owned Property in any manner other
than in full compliance with all Hazardous Material Laws; neither the
Company (including Enterprises) nor the owner of any Previously Owned
Property has ever received written notice or oral notice or other
communication of pending or threatened claims, actions, suits,
proceedings or investigations relating to any Previously Owned Property
regarding (i) the disposal or release of solid, liquid or gaseous waste
into the environment, (ii) the treatment, storage, disposal, release or
other handling of any Hazardous Material, (iii) the placement of
structures or materials into water of the United States, (iv) the
presence of any Hazardous Material in any building or structure located
on any Previously Owned Property, (v) the presence of any Hazardous
Material related to
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<PAGE> 15
the ownership, use, condition or operation of any Previously Owned
Property or (vi) any alleged violation of any Hazardous Material Law;
to the Company's knowledge, there were no underground tanks or any
other underground storage facilities located on any Previously Owned
Property during the time period prior to and including the period that
any Previously Owned Property was owned by the Company (or Enterprises)
or any owner of a JDN Property.
As used herein, "Hazardous Material" shall include, without
limitation, any substance which is controlled, regulated or prohibited
under any Hazardous Material Law. "Hazardous Material Law" shall mean
any local, state and federal law relating to the environment and
environmental conditions, including, without limitation, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss. 6901 et
seq., the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. ss.ss. 9601-9637, as
amended by the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. ss.
6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C.
ss.ss. 1251 et seq., the Clean Air Act, 42 U.S.C. ss.ss. 741, et seq.,
the Clean Water Act, 33 U.S.C. ss. 7401, et seq., the Toxic Substances
Control Act, 15 U.S.C. ss.ss. 2601-2629, and the Safe Drinking Water
Act, 42 U.S.C. ss.ss. 300f-300j.
(32) Tax Compliance. The Company has filed all
federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so
file would not have a Material Adverse Effect), and has paid all taxes
required to be paid for any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith. All past due taxes with respect
to the Properties have been paid, and the Company and the Subsidiaries
have no liability, and no tax lien or other charge exists with respect
to any Property that would have a Material Adverse Effect on the
business of the Company. All material tax liabilities have been
adequately provided for in the financial statements of the Company.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any Subsidiary and delivered to any Underwriter or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
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(b) Option Underwritten Securities. In addition, subject to the terms
and conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the time of such Terms Agreement, and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon written notice by
Merrill Lynch to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by Merrill Lynch, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by Merrill Lynch and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total number of Initial Underwritten
Securities, subject to such adjustments as Merrill Lynch in its discretion shall
make to eliminate any sales or purchases of a fractional number or aggregate
principal amount, as the case may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of the
Initial Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W.,
Washington D.C. 20004, or at such other place as shall be agreed upon by Merrill
Lynch and the Company, at 10:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by Merrill Lynch and the Company (each such
time and date of payment and delivery being herein called "Closing Time"). In
addition, in the event that the Underwriters have exercised their option, if
any, to purchase any or all of the Option Underwritten Securities, payment of
the purchase price for, and delivery of such Option Underwritten Securities,
shall be made at the above-mentioned offices of Hogan & Hartson L.L.P., or at
such other place as shall be agreed upon by Merrill Lynch and the Company, on
the relevant Date of Delivery as specified in the notice from Merrill Lynch to
the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
Merrill Lynch for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Merrill Lynch, for its account, to accept
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<PAGE> 17
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. Merrill
Lynch, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has not
been received by the applicable Closing Time or the relevant Date of Delivery,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
authorized denominations and registered in such names as Merrill Lynch may
request in writing at least two full business days prior to the applicable
Closing Time or the relevant Date of Delivery, as the case may be. The
Underwritten Securities or certificates for the Underwritten Securities, as
applicable, will be made available for examination and packaging by Merrill
Lynch in The City of New York not later than 10:00 A.M. (Eastern time) on the
business day prior to the applicable Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants with each Underwriter participating in the
offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify Merrill Lynch, as representative of the
Underwriters, immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt of
any comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 and will take such
steps as it deems necessary to ascertain promptly whether the prospectus
transmitted for filing under Rule 424 was received for filing by the Commission
and, in the event that it was not, it will promptly file the Prospectus. The
Company will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. At any time when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with the sales
of the Underwritten Securities, the Company will give Merrill Lynch, as
representative of the Underwriters, notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations), any Term Sheet or any amendment, supplement
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<PAGE> 18
or revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish Merrill Lynch, as representative of
the Underwriters, with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which Merrill Lynch, as representative of the
Underwriters, or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Merrill Lynch, as representative of the Underwriters, and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to Merrill Lynch,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted or required by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted or required by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the
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<PAGE> 19
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
the Underwriters may designate and to maintain such qualifications in effect for
a period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities have been so qualified, the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the date of the applicable Terms Agreement.
(g) Earning Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock and/or
Preferred Stock, the Company will reserve and keep available at all times, free
of preemptive or other similar rights, a sufficient number of shares of Common
Stock and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities upon
exercise of the related Warrants, as applicable, or upon conversion of the
Preferred Stock, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
(i) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(j) Listing. If so stated in the applicable Prospectus Supplement, the
Company will use its best efforts to have the Underwritten Securities and any
related Underlying Securities approved for listing upon official notice of
issuance on the New York Stock Exchange as of the applicable Closing Time. The
Company will use its best efforts to maintain the listing of any such
Underwritten Securities and related Underlying Securities on the New York Stock
Exchange.
(k) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the applicable Closing Time or such other date
specified in such Terms
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Agreement, the Company will not, without the prior written consent of Merrill
Lynch, directly or indirectly, issue, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of the securities specified in such Terms
Agreement, except as provided in the applicable Terms Agreement.
(l) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures, any Warrant
Agreement and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of any certificates for the Underwritten
Securities, as applicable, to the Underwriters, (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the fees and disbursements of the
Trustees and any Warrant Agent and their respective counsel, (v) the
qualification of the Underwritten Securities and any related Underlying
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the Prospectus and
any amendments or supplements thereto, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities and any Underlying
Securities, if applicable and (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Underwritten Securities and
any related Underlying Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Securities and any related Underlying Securities, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A) or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At each Closing Time, the
Underwriters shall have received the favorable opinions, dated as of the
applicable Closing Time, of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company, Brown & Wood, LLP and Glass, McCullough, Sherrill &
Harrold, LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At each Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the
applicable Closing Time, of Hogan & Hartson L.L.P., counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, with respect to the matters set forth in (1), (6),
the first two sentences (excluding the last clause of the second sentence, in
each case), of (7) and (8), (9) excluding the last sentence, (10) to (12), (13)
excluding the last clause of the second sentence, (14), as applicable, (15)
(solely as to the information in the Prospectus under "Description of
Underwritten Securities" and "Description of the Underlying Securities," if any,
or any caption purporting to describe any such Securities), (22), and the
penultimate paragraph of the opinion attached as Exhibit B hereto. In giving
such opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the District of Columbia and the federal law
of the United States, upon the opinions of counsel satisfactory to Merrill
Lynch.
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Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its Subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At each Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
Merrill Lynch shall have received a certificate of the Chairman, President or a
Vice President of the Company and of the chief financial officer or chief
accounting officer of the Company, dated as of the applicable Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as though expressly made at and as of the applicable Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under this Agreement at or
prior to the applicable Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to the knowledge of such officers,
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from Ernst &
Young L.L.P. a letter dated such date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At each Closing Time, the Underwriters
shall have received from Ernst & Young LLP a letter, dated as of the applicable
Closing Time, to the effect that they reaffirmed the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the applicable Closing Time.
(g) Ratings. At each Closing Time and at any relevant Date of Delivery,
the Underwritten Securities shall have the rating accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to Merrill
Lynch a letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to Merrill Lynch, confirming that the Underwritten
Securities have such ratings. Since the time of execution of the applicable
Terms Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Securities or any of the Company's other securities
by any such rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Underwritten Securities or any of the
Company's other securities.
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(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement of an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
Merrill Lynch shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) Over-Allotment Option. If the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its Subsidiaries hereunder shall
be true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, the Underwriters shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chairman, President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinion of Waller Lansden Dortch & Davis, A
Professional Limited Liability Company, Brown & Wood, LLP and Glass,
McCullough, Sherrill & Harrold, LLP counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the Opinion required by Section 5(b)
hereof.
(3) The favorable Opinion of Hogan & Hartson L.L.P., counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP., in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Underwriters pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(l) Additional Documents. At each Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they
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<PAGE> 24
may require for the purpose of enabling them to
pass upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the Underwriters.
(m) Termination of Underwriting Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Underwritten Securities
on such Date of Delivery) may be terminated by Merrill Lynch by notice to the
Company at any time at or prior to the Closing Time (or such Date of Delivery,
as applicable), and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6,7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including
information included in a prospectus or term sheet, as the case may be,
that was omitted from the Registration Statement at the time it become
effective but that is deemed to be part of such Registration Statement
at the time it became effective pursuant to paragraph (b) of Rule 430A
("Rule 430 Information") or pursuant to paragraph (d) of Rule 434
("Rule 434 Information") or deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
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(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any
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one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and of
the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters (in each case as set forth on the cover of the Prospectus, or if
Rule 434 is used,
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the corresponding location on the Term Sheet) bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such cover
or in such Term Sheet.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number or aggregate principal amount, as the
case may be, of Initial Underwritten Securities set forth opposite their
respective names in the applicable Terms Agreement, and not joint.
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SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates
of officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company or controlling person, and shall survive delivery of and payment for the
Underwritten Securities.
SECTION 9. TERMINATION
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Merrill Lynch upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the applicable
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Merrill Lynch,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or limited by the Commission or the New York
Stock Exchange or, if trading generally on the New York Stock Exchange or the
American Stock Exchange or in the Nasdaq National Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
market or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or, if the Underwritten Securities or any related
Underlying Securities include Debt Securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to
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any other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters shall fail at the
applicable Closing Time or the relevant Date of Delivery, as the case may be,
to purchase the Underwritten Securities which it or they are obligated to
purchase under the applicable Terms Agreement (the "Defaulted Securities"),
then Merrill Lynch shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, Merrill Lynch shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such
Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to
sell, such Option Underwritten Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Merrill Lynch or the Company shall have
the right to postpone the applicable Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
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SECTION 11. NOTICES
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Merrill Lynch at World Financial Center, North Tower, New York, New
York 10281-1201 attention of: Tjarda Clagett, Director, with a copy to Hogan &
Hartson, L.L.P., 555 Thirteenth Street, N.W., Washington, D.C. 20004-1109,
Attention: J. Warren Gorrell, Jr., and notices to the Company shall be directed
to it at: JDN Realty Corporation, 3340 Peachtree Road, Suite 1530, Atlanta,
Georgia, Attention: J. Donald Nichols, with a copy to Waller Lansden Dortch &
Davis, A Professional Limited Liability Company, Nashville City Center, 511
Union Street, Suite 2100, Nashville, TN 37219-1760, Attention: E. Marlee
Mitchell.
SECTION 12. PARTIES
This Underwriting Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, Merrill
Lynch, and, upon execution of such Terms Agreement, any other Underwriters and
their respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. EFFECT OF HEADINGS
The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
30
<PAGE> 31
SECTION 15. COUNTERPARTS
This Agreement may be executed in one or more counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
31
<PAGE> 32
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will become
a binding agreement between Merrill Lynch and the Company in accordance with its
terms.
Very truly yours,
JDN Realty Corporation
By: /s/ William J. Kerley
-----------------------
Name: William J. Kerley
Title: Chief Financial Officer
32
<PAGE> 33
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Tjarda Clagett
----------------------------------
Authorized Signatory
33
<PAGE> 34
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in or
incorporated by reference into the Prospectus and to enter into and perform its
obligations under, or as contemplated under, the Underwriting Agreement and the
applicable Terms Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(4) Each Subsidiary has been duly incorporated or formed and is validly
existing as a corporation or limited partnership in good standing under the laws
of the jurisdiction of its incorporation or formation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in or incorporated by reference into the Prospectus and is duly
qualified as a foreign corporation or limited partnership to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding equity securities of each Subsidiary have been duly authorized and
is validly issued, fully paid and non-assessable and, except for JDN Development
(the outstanding voting common stock of which is owned 99% by J. Donald Nichols
and 1% by the Company, and the outstanding non-voting common stock of which is
owned 100% by the Company), to the best of our knowledge, is owned by the
Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding equity securities of any Subsidiary were issued in violation of
preemptive or other similar rights of any securityholder of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of
the Company was as set forth as of the date indicated under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans, stock option or purchase plans or dividend reinvestment
plans referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such shares of capital
stock have been duly authorized and validly issued by the Company and are fully
paid and non-assessable, and none of
<PAGE> 35
such shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(6) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(7) The applicable Underwritten Securities, if such Underwritten
Securities are Common Stock, have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and delivered by the
Company pursuant to the Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of the Underwritten Securities is or will be subject to personal
liability by reason of being such a holder. The form of certificate used to
evidence the Underwritten Securities is in due and proper form and complies with
the applicable statutory requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of the New York
Stock Exchange.
(8) The applicable Underwritten Securities, if such Underwritten
Securities are Preferred Stock, have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The applicable Preferred Stock, when issued and delivered by
the Company pursuant to the Underwriting Agreement and such Terms Agreement
against payment of the consideration specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company. No
holder of such Preferred Stock is or will be subject to personal liability by
reason of being such a holder. The form of certificate used to evidence the
Preferred Stock is in due and proper form and complies with the applicable
statutory requirements, with any applicable requirements of the charter or
by-laws of the Company and with the requirements of the New York Stock Exchange.
The applicable Articles Supplementary is in full force and effect.
(9) The applicable Underwritten Securities, if such Underwritten
Securities include Senior Debt Securities and/or Subordinated Debt Securities,
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Debt Securities denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
2
<PAGE> 36
authority to limit, delay or prohibit the making of payments outside the United
States. The Underwritten Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(10) The applicable Indenture, if such Underwritten Securities include
Senior Debt Securities and/or Subordinated Debt Securities or if Preferred Stock
is convertible into Debt Securities, has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(11) The applicable Underwritten Securities, if such Underwritten
Securities include Warrants, have been duly authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated in
the manner provided for in the applicable Warrant Agreement and delivered
against payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and legally binding obligations of the Company, entitled
to the benefits provided by such Warrant Agreement and enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(12) The applicable Warrant Agreement, if such Underwritten Securities
includes Warrants, has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
applicable Warrant Agent) constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(13) The applicable Underlying Securities, if such Underlying
Securities include Common Stock or Preferred Stock, have been duly authorized
and reserved for issuance by the Company upon exercise of the Warrants or upon
conversion of the related Preferred Stock, Senior Debt Securities or
Subordinated Debt Securities. The Underlying Securities, when issued upon such
exercise or conversion, will be validly issued, fully paid and non-assessable
and will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of the Underlying Securities is or will
be subject to personal liability by reason of being such a holder. The
Underlying Securities have been duly authorized for issuance by the Company upon
exercise of the Warrants or upon conversion of the related Preferred Stock. The
Underlying Securities, when issued and authenticated in the manner provided for
in the applicable Indenture and delivered in accordance with the terms of the
related Preferred Stock, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by
3
<PAGE> 37
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Debt Securities denominated other
than in U.S. dollars (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(14) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and/or each applicable Indenture or Warrant Agreement conform,
and any Underlying Securities, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(15) The information in the Prospectus under "Description of
Underwritten Securities" and "Description of Underlying Securities," if any, or
any caption purporting to describe any such Securities, whether in the
Prospectus or the Prospectus Supplement, under the heading "Certain Federal
Income Tax Considerations" or similar heading if any, in the Prospectus
Supplement and in the Registration Statement under Item 15, to the extent that
it constitutes matters of law, summaries of legal matters, the Company's charter
and bylaws, legal proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(16) To the best of our knowledge, neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its Subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(17) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and each applicable Indenture or
Warrant Agreement and any other agreement or instrument entered into or issued
or to be entered into or issued by the Company in connection with the
transactions contemplated in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated in the Underwriting Agreement
and such Terms Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company with its obligations
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or any other agreement or instrument, known to
us, to which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
4
<PAGE> 38
operations of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches, defaults, events or liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries, nor will any such action result in any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations except for such violations that would
not result in a Material Adverse Effect.
(18) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation to which the Company or
any of its Subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its Subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect or which might
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or any applicable
Indenture or Warrant Agreement or the performance by the Company of its
obligations thereunder.
(19) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its Subsidiaries are a party are
accurate in all material respects. To the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(20) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(21) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b). To the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(22) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and each Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1s"), as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
5
<PAGE> 39
(23) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(24) No filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under the Underwriting Agreement
or the applicable Terms Agreement or in connection with the transactions
contemplated under the Underwriting Agreement, such Terms Agreement or any
applicable Indenture or Warrant Agreement, other than under the 1933 Act, the
1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, which have been
obtained (or as may be required under state securities or blue sky laws or by
the NASD, as to which we express no opinion).
(25) The applicable Underwritten Underlying Securities, if such
Underwritten Underlying Securities include Senior Debt Securities and/or
Subordinated Debt Securities, upon issuance, will be excluded or exempted under,
or beyond the purview of, the Commodity Exchange Act, as amended (the "Commodity
Exchange Act"), and the rules and regulations of the Commodity Futures Trading
Commission under the Commodity Exchange Act (the "Commodity Exchange Act
Regulations").
(26) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(27) Based on certain customary assumptions and representations
(acceptable to counsel for the Underwriter in their reasonable discretion)
relating to applicable asset composition, source of income, shareholder
diversification distribution, recordkeeping tests and other requirements of the
Code necessary for the Company to qualify as a real estate investment trust
("REIT"), the Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under Sections 856 through
860 of the Code for each of the taxable years ended December 31, 1994, December
31, 1995 and December 31, 1996, and the Company's current organization and
method of operations will enable the Company to continue to qualify as a REIT
under the Code. The discussion incorporated by reference into the Registration
Statement under the caption "Federal Income Tax Considerations" fairly
summarizes the federal income tax considerations that are likely to be material
to a holder of Underwritten Securities and, to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel, is
correct and presents fairly the information required to be disclosed therein.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any post-effective amendment thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom and for the Form T-1s,
6
<PAGE> 40
as to which we make no statement), at the time the Registration Statement or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which we
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the applicable Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
7
<PAGE> 1
EXHIBIT 1.2
JDN REALTY CORPORATION
(a Maryland corporation)
$75,000,000 6.80% Notes due 2004
$85,000,000 6.95% Notes due 2007
TERMS AGREEMENT
July 30, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
B.T. Securities Corporation
Smith Barney Inc.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 100281-1209
Ladies and Gentlemen:
We understand that JDN Realty Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell $75,000,000 and $85,000,000 aggregate
principal amount of its 6.80% Notes due 2004 and its 6.95% Notes due 2007,
respectively (the "Debt Securities") such securities also being hereinafter
referred to as the "Initial Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, we the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the principal amount of Initial Underwritten Securities opposite their names set
forth below at the purchase price set forth below.
<PAGE> 2
<TABLE>
Principal Amount Principal Amount
of Initial of Initial
Underwritten Underwritten
Underwriter Securities Securities
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $25,000,000 $28,333,400
B.T. Securities Corporation $25,000,000 $28,333,300
Smith Barney Inc. $25,000,000 $28,333,300
Total $75,000,000 $85,000,000
</TABLE>
The Initial Underwritten Securities shall have the following terms:
6.80% Notes due 2004
TITLE: 6.80% Notes due 2004
RANK: Senior debt securities
RATINGS: Moody's Investor Service BBB-, Duff & Phelps BBB, Standard & Poor's
Corporation Baa3
AGGREGATE PRINCIPAL AMOUNT: $75,000,000
DENOMINATIONS: $1000
CURRENCY OF PAYMENT: U.S. dollars
INTEREST RATE OR FORMULA: 6.80%
INTEREST PAYMENT DATES: February 1 and August 1 of each year, beginning on
February 1, 1998.REGULAR RECORD DATES: 15 days prior
to interest payment date, regardless of whether such
day is a business day
STATED MATURITY DATE: August 1, 2004
REDEMPTION PROVISIONS: The 6.80% Notes due 2004 are redeemable at any time at
the option of the Company, in whole or in part, at a
redemption price equal to the sum of (i) the principal amount
of the Notes being redeemed plus accrued interest to the
redemption date and (ii) the Make-Whole Amount (as defined
in the 6.80% Notes due 2004)
SINKING FUND REQUIREMENTS: None
CONVERSION PROVISIONS: None
LISTING REQUIREMENTS: None
FIXED OR VARIABLE PRICE OFFERING: Fixed Price Offering
Initial public offering price per note: 99.670% of the
principal amount, plus accrued interest and amortized original
issue discount, if any, from August 4, 1997.
PURCHASE PRICE PER NOTE: 99.020% of principal amount, plus accrued interest and
amortized original issue discount, if any, from August 4,
1997.
FORM: Global note
<PAGE> 3
OTHER TERMS AND CONDITIONS: The 6.80% Notes due 2004 shall be governed by the
Indenture dated July 15, 1997 and the First Supplemental
Indenture dated July 31, 1997.
CLOSING DATE AND LOCATION: August 4, 1997, Hogan & Hartson L.L.P., 555
Thirteenth Street, N.W., Washington, D.C. 20004.
6.95% Notes due 2007
TITLE: 6.95% Notes due 2007
RANK: Senior debt securities
RATINGS: Moody's Investor Service BBB-, Duff & Phelps BBB, Standard & Poor's
Corporation Baa3
PRINCIPAL AMOUNT: $100,000,000
DENOMINATIONS: $1000
CURRENCY OF PAYMENT: U.S. dollars
INTEREST RATE OR FORMULA:
INTEREST PAYMENT DATES: February 1 and August 1 of each year, beginning on
February 1, 1998.
REGULAR RECORD DATES: 15 days prior to interest payment date, regardless of
whether such day is a business day
STATED MATURITY DATE: August 1, 2007
REDEMPTION PROVISIONS: The 6.95% Notes due 2007 are redeemable at any time at
the option of the Company, in whole or in part, at a
redemption price equal to the sum of (i) the principal amount
of the Notes being redeemed plus accrued interest to the
redemption date and (ii) the Make-Whole Amount (as defined in
the 6.95% Notes due 2007)
SINKING FUND REQUIREMENTS: None
CONVERSION PROVISIONS: None
LISTING REQUIREMENTS: None
FIXED OR VARIABLE PRICE OFFERING: Fixed Price Offering
Initial public offering price per note: 99.686% of the
principal amount, plus accrued interest and amortized original
issue discount, if any, from August 4, 1997.
PURCHASE PRICE PER NOTE: 98.986% of principal amount, plus accrued interest and
amortized original issue discount, if any, from August 4,
1997.
FORM: Global note
OTHER TERMS AND CONDITIONS: The 6.95% Notes due 2007 shall be governed by the
Indenture dated July 15, 1997 and the First Supplemental
Indenture dated July 31, 1997.
CLOSING DATE AND LOCATION: August 4, 1997, Hogan & Hartson L.L.P., 555
Thirteenth Street, N.W., Washington, D.C. 20004.
<PAGE> 4
Please accept this offer no later than Four o'clock P.M. (New York City
time) on July 30, 1997 by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Tjarda Clagett
-------------------------------------------
Authorized Signatory
Acting on behalf of itself and the other named
Underwriters.
Accepted:
JDN Realty Corporation
By: /s/ William J. Kerley
-------------------------
Name: William J. Kerley
Title: Chief Financial Officer
<PAGE> 1
EXHIBIT 4.1
===============================================================================
JDN REALTY CORPORATION
TO
FIRST UNION NATIONAL BANK,
Trustee
----------------------
INDENTURE
Dated as of July 15, 1997
----------------------
Senior Debt Securities
===============================================================================
<PAGE> 2
JDN REALTY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as amended (the
"1939 Act"), and Indenture, dated as of July 15, 1997.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
310(a)(1)........................................607
(a)(2)........................................607
(b) 608
312(c) 701
313(a) 702
(c) 702
314(a)(1), (2), (3)..............................703
(a)(4).......................................1010
(c)(1)........................................102
(c)(2)........................................102
(e) 102
315(b)...........................................601
316(a)(last sentence)
101 ("Outstanding")
(a)(1)(A)................................502, 512
(a)(1)(B).....................................513
(b) 508
317(a)(1)........................................503
(a)(2)........................................504
318(a) 112
(c) 112
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the
1939 Act, which provides that the provisions of 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.
i
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
ARTICLE ONE -DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................................................................ 1
SECTION 101. Definitions.......................................................................... 1
"Acquired Debt"........................................................................................ 2
"Act".................................................................................................. 2
"Additional Amounts"................................................................................... 2
"Affiliate"............................................................................................ 2
"Authenticating Agent"................................................................................. 2
"Authorized Newspaper"................................................................................. 2
"Bankruptcy Law"....................................................................................... 3
"Bearer Security"...................................................................................... 3
"Board of Directors"................................................................................... 3
"Board Resolution"..................................................................................... 3
"Business Day"......................................................................................... 3
"Capital Stock"........................................................................................ 3
"CEDEL"................................................................................................ 3
"Commission"........................................................................................... 3
"Common Depository".................................................................................... 3
"Company".............................................................................................. 3
"Company Request" and "Company Order".................................................................. 3
"Conversion Event"..................................................................................... 4
"Corporate Trust Office"............................................................................... 4
"Corporation".......................................................................................... 4
"Coupon"............................................................................................... 4
"Custodian"............................................................................................ 4
"Debt"................................................................................................. 4
"Defaulted Interest"................................................................................... 4
"Disqualified Stock"................................................................................... 4
"Dollar" or "$"........................................................................................ 5
"DTC".................................................................................................. 5
"ECU".................................................................................................. 5
"Euroclear"............................................................................................ 5
"European Communities"................................................................................. 5
"European Monetary System"............................................................................. 5
"Event of Default"..................................................................................... 5
"Exchange Act"......................................................................................... 5
"Foreign Currency"..................................................................................... 5
"Funds from Operations"................................................................................ 5
"GAAP"................................................................................................. 5
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
"Government Obligations"............................................................................... 6
"Hedging Obligations".................................................................................. 6
"Holder"............................................................................................... 6
"Indenture"............................................................................................ 6
"Indexed Security"..................................................................................... 7
"Interest"............................................................................................. 7
"Interest Payment Date"................................................................................ 7
"Make-Whole Amount".................................................................................... 7
"Maturity"............................................................................................. 7
"Officers' Certificate"................................................................................ 7
"Opinion of Counsel"................................................................................... 7
"Original Issue Discount Security"..................................................................... 7
"Outstanding".......................................................................................... 7
"Paying Agent"......................................................................................... 9
"Person"............................................................................................... 9
"Place of Payment"..................................................................................... 9
"Predecessor Security"................................................................................. 9
"Redemption Date"...................................................................................... 9
"Redemption Price"..................................................................................... 9
"Registered Security".................................................................................. 9
"Regular Record Date".................................................................................. 9
"Repayment Date"....................................................................................... 9
"Repayment Price"...................................................................................... 9
"Responsible Officer".................................................................................. 10
"Securities Act"....................................................................................... 10
"Security"............................................................................................. 10
"Security Register" and "Security Registrar"........................................................... 10
"Significant Subsidiary"............................................................................... 10
"Special Record Date".................................................................................. 10
"Stated Maturity"...................................................................................... 10
"Subsidiary"........................................................................................... 10
"Trust Indenture Act" or "TIA"......................................................................... 10
"Trustee".............................................................................................. 10
"United States"........................................................................................ 11
"United States person"................................................................................. 11
"Yield to Maturity".................................................................................... 11
SECTION 102. Compliance Certificates and Opinions................................................. 11
SECTION 103. Form of Documents Delivered to Trustee............................................... 12
SECTION 104. Acts of Holders...................................................................... 12
SECTION 105. Notices, etc., to Trustee and Company................................................ 14
SECTION 106. Notice to Holders; Waiver............................................................ 14
SECTION 107. Effect of Headings and Table of Contents............................................. 15
SECTION 108. Successors and Assigns............................................................... 16
SECTION 109. Separability Clause.................................................................. 16
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 110. Benefits of Indenture................................................................ 16
SECTION 111. No Personal Liability................................................................ 16
SECTION 112. Governing Law........................................................................ 16
SECTION 113. Legal Holidays....................................................................... 16
ARTICLE TWO - SECURITIES FORMS.................................................................................. 17
SECTION 201. Forms of Securities.................................................................. 17
SECTION 202. Form of Trustee's Certificate of Authentication...................................... 17
SECTION 203. Securities Issuable in Global Form................................................... 18
ARTICLE THREE - THE SECURITIES.................................................................................. 19
SECTION 301. Amount Unlimited; Issuable in Series................................................. 19
SECTION 302. Denominations........................................................................ 23
SECTION 303. Execution, Authentication, Delivery and Dating....................................... 23
SECTION 304. Temporary Securities................................................................. 25
SECTION 305. Registration, Registration of Transfer and Exchange.................................. 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..................................... 31
SECTION 307. Payment of Interest; Interest Rights Preserved....................................... 32
SECTION 308. Persons Deemed Owners................................................................ 34
SECTION 309. Cancellation......................................................................... 35
SECTION 310. Computation of Interest.............................................................. 36
SECTION 311. Determinations by the Company........................................................ 36
ARTICLE FOUR - SATISFACTION AND DISCHARGE....................................................................... 36
SECTION 401. Satisfaction and Discharge of Indenture.............................................. 36
SECTION 402. Application of Trust Funds........................................................... 38
ARTICLE FIVE - REMEDIES......................................................................................... 38
SECTION 501. Events of Default.................................................................... 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment................................... 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...................... 41
SECTION 504. Trustee May File Proofs of Claim..................................................... 42
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.............................................................................. 43
SECTION 506. Application of Money Collected....................................................... 43
SECTION 507. Limitation on Suits.................................................................. 43
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts................................................. 44
SECTION 509. Restoration of Rights and Remedies................................................... 44
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 510. Rights and-Remedies Cumulative....................................................... 44
SECTION 511. Delay or Omission Not Waiver......................................................... 45
SECTION 512. Control by Holders of Securities..................................................... 45
SECTION 513. Waiver of Past Defaults.............................................................. 45
SECTION 514. Waiver of Usury, Stay or Extension Laws.............................................. 46
SECTION 515. Undertaking for Costs................................................................ 46
ARTICLE SIX - THE TRUSTEE....................................................................................... 47
SECTION 601. Notice of Defaults................................................................... 47
SECTION 602. Certain Rights of Trustee............................................................ 47
SECTION 603. Not Responsible for Recitals or Issuance of Securities............................... 49
SECTION 604. May Hold Securities.................................................................. 49
SECTION 605. Money Held in Trust.................................................................. 49
SECTION 606. Compensation and Reimbursement....................................................... 49
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests....................... 50
SECTION 608. Resignation and Removal; Appointment of Successor.................................... 50
SECTION 609. Acceptance of Appointment By Successor............................................... 52
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.......................... 53
SECTION 611. Appointment of Authenticating Agent.................................................. 53
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST................................................. 55
SECTION 701. Disclosure of Names and Addresses of Holders......................................... 55
SECTION 702. Reports by Trustee................................................................... 55
SECTION 703. Reports by Company................................................................... 55
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders............................ 56
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE................................................ 57
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.................................. 57
SECTION 802. Rights and Duties of Successor Corporation........................................... 57
SECTION 803. Officers' Certificate and Opinion of Counsel......................................... 58
ARTICLE NINE - SUPPLEMENTAL INDENTURES.......................................................................... 58
SECTION 901. Supplemental Indentures Without Consent of Holders................................... 58
SECTION 902. Supplemental Indentures with Consent of Holders...................................... 60
SECTION 903. Execution of Supplemental Indentures................................................. 61
SECTION 904. Effect of Supplemental Indentures.................................................... 61
SECTION 905. Conformity with Trust Indenture Act.................................................. 61
SECTION 906. Reference in Securities to Supplemental Indentures....................................61
SECTION 907. Notice of Supplemental Indentures.................................................... 61
</TABLE>
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<TABLE>
<S> <C>
ARTICLE TEN - COVENANTS......................................................................................... 62
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts.......................................62
SECTION 1002. Maintenance of Office or Agency...................................................... 62
SECTION 1003. Money for Securities Payments to Be Held in Trust.................................... 64
SECTION 1004. Additional Covenants................................................................. 65
SECTION 1005. Existence............................................................................ 65
SECTION 1006. Maintenance of Properties............................................................ 66
SECTION 1007. Insurance............................................................................ 66
SECTION 1008. Payment of Taxes and Other Claims.................................................... 66
SECTION 1009. Provision of Financial Information................................................... 66
SECTION 1010. Statement as to Compliance........................................................... 67
SECTION 1011. Additional Amounts................................................................... 67
SECTION 1012. Waiver of Certain Covenants.......................................................... 68
ARTICLE ELEVEN - REDEMPTION OF SECURITIES....................................................................... 68
SECTION 1101. Applicability of Article............................................................. 68
SECTION 1102. Election to Redeem; Notice to Trustee................................................ 69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.................................... 69
SECTION 1104. Notice of Redemption................................................................. 69
SECTION 1105. Deposit of Redemption Price.......................................................... 71
SECTION 1106. Securities Payable on Redemption Date................................................ 71
SECTION 1107. Securities Redeemed in Part.......................................................... 72
ARTICLE TWELVE - [RESERVED]..................................................................................... 72
ARTICLE THIRTEEN - [RESERVED]................................................................................... 72
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE............................................................73
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance............................................. 73
SECTION 1402. Defeasance and Discharge............................................................. 73
SECTION 1403. Covenant Defeasance.................................................................. 74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...................................... 74
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions........................................................................... 76
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES............................................................. 77
SECTION 1501. Purposes for Which Meetings May Be Called............................................ 77
SECTION 1502. Call, Notice and Place of Meetings................................................... 77
</TABLE>
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<TABLE>
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SECTION 1503. Persons Entitled to Vote at Meetings................................................. 78
SECTION 1504. Quorum; Action....................................................................... 78
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................................................. 79
SECTION 1506. Counting Votes and Recording Action of Meetings...................................... 80
SECTION 1507. Evidence of Action Taken by Holders.................................................. 80
SECTION 1508. Proof of Execution of Instruments.................................................... 81
</TABLE>
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<PAGE> 9
INDENTURE
INDENTURE, dated as of July 15, 1997, between JDN REALTY CORPORATION,
a Maryland corporation (hereinafter called the "Company"), having its principal
office at 3340 Peachtree Road, Suite 1530, Atlanta, Georgia 30326 and FIRST
UNION NATIONAL BANK, as Trustee hereunder (hereinafter called the "Trustee"),
having its Corporate Trust Office at 11th Floor, 999 Peachtree Street, N.E.,
Atlanta, Georgia 30309.
RECITALS OF THE TRUST
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to aggregate
principal amount, to bear interest at the rates or formulas, to mature at such
times and to have such other provisions as shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act (as defined below), 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 Trust Indenture
<PAGE> 10
Act Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles. In addition, the
following terms shall have the indicated respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security, under circumstances specified therein, to be paid by the Company
in respect of certain taxes imposed on certain Holders and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"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.
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"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means either (i) the Board of Directors of the
Company, the executive committee or any other committee of directors of that
board duly authorized to act for it in respect hereof, or (ii) one or more duly
authorized officers of the Company to whom the Board of Directors of the
Company or a committee thereof has delegated the authority to act with respect
to the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or a committee thereof, and to be in full force and
effect on the date of such certification, or (ii) a certificate signed by the
authorized officer or officers of the Company to whom the Board of Directors of
the Company or a committee thereof has delegated its authority (as described in
the definition of Board of Directors), and in each case delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"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 Depository" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chief Executive
Officer, the President or a
3
<PAGE> 12
Vice President of the Company, and by the Treasurer, 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 (other than the ECU or other currency unit) both by the government of
the country which issued such currency and for the settlement of transactions
by a central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Communities or (iii) any currency unit (or composite currency) other
than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 11th Floor, 999
Peachtree Street, N.E., Atlanta, Georgia 30309.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning set forth in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (without
duplication) (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) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Company or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock, (v) every Hedging Obligation or (vi) any
lease of property by the Company or any Subsidiary as lessee which is reflected
on the Company's consolidated balance sheet in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by the Company
or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
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<PAGE> 13
otherwise, (ii) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the Stated Maturity of the
series of Debt Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for payment of public and private debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"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.
"Funds from Operations" for any period means the consolidated net
income of the Company and its Subsidiaries for such period without giving
effect to depreciation and amortization or to gains or losses from debt
restructuring and sales of real estate, plus funds from operations of
unconsolidated joint ventures, all determined on a consistent basis in
accordance with GAAP.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
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<PAGE> 14
"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.
"Hedging Obligations" means, with respect to any Person, all
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) foreign exchange
contracts, currency swap agreements or similar agreements, and (iii) other
agreements or arrangements designed to protect such Person against
fluctuations, or otherwise to establish financial hedges in respect of,
exchange rates, currency rates or interest rates.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
6
<PAGE> 15
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any
Security, the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to
principal which is required by a Security, under the terms and conditions
specified therein or as otherwise specified as contemplated by Section 301, to
be paid by the Company to the Holder thereof in connection with any optional
redemption or accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Company or other counsel satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore 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
7
<PAGE> 16
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or other provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except solely to the extent provided in
Sections 1402 or 1403, as applicable, with respect to which the
Company has effected defeasance and/or covenant defeasance as
provided in Article 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 Capital Stock of the Company
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 Trust Indenture Act Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted in making
such determination or calculation and that shall be deemed to be Outstanding
for such purpose shall be equal to the amount of principal thereof that would
be (or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Company, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant to Section
301, and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of 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
8
<PAGE> 17
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities, or coupons on behalf of the Company, or if no such Person is
authorized, the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium
or Make-Whole Amount, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date" means, when used with respect to any Security to be
redeemed in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Security to
be redeemed, the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the installment of interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid or purchased at the option of the Holder, the price at which it is to be
repaid or repurchased by or pursuant to this Indenture.
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"Responsible Officer" means, when used with respect to the Trustee,
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of or within any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary"(within the meaning of Regulation S-X, promulgated under the
Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Security or
any installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (a) the voting power of the voting equity
securities or (b) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"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,
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"Trustee" as used with respect to the Securities of or within any series shall
mean only the Trustee with respect to the Securities of that series.
"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 of or any state
or the District of Columbia 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
predetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including covenants, compliance with which
constitute conditions precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the provisions 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
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, whether 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
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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 or by a certificate of 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
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depository, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. 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
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or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, 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 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 (a) hand delivered, (b) sent by a recognized overnight air courier service
or (c) 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.
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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, and if the Securities of such series are listed on any stock
exchange outside the United States, in any place at which such Securities are
listed on a securities exchange to the extent that such securities exchange so
requires, on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons
appertaining thereto, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. NO PERSONAL LIABILITY.
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 laws of the State of New York. This
Indenture is subject to the provisions of the TIA that are required to be part
of this Indenture and shall, to the extent applicable, be governed by such
provisions. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the duties imposed by TIA
Section 318(c) shall control.
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
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Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium or Make-Whole
Amount, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or more
indentures supplemental hereto or Board Resolutions, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed,
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL 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
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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. Prior to the
issuance of Securities of any series, there shall be established in or pursuant
to the authority granted by one or more Board Resolutions, or indentures
supplemental hereto, any or all of the following, as applicable (each of which,
if so provided, may be determined from time to time by the Company with respect
to unissued Securities of or within the series when issued from time to time):
(1) the title of the Securities of or within the series (which shall
distinguish the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities
of or within the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of or
within the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of or within the series
shall be payable and the amount of principal payable thereon;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of or within the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or dates from which
such interest shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be payable
and the Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date shall
be determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium
or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of or
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within the series shall be payable, any Registered Securities of or within the
series may be surrendered for registration of transfer, exchange or conversion
and notices or demands to or upon the Company in respect of the Securities of
or within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the currency or
currencies, currency unit or units or composite currency or currencies in which
and other terms and conditions upon which Securities of or within the series
may be redeemed in whole or in part, at the option of the Company, if the
Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of or within the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period or
periods within which or the date or dates on which, the price or prices at
which, the currency or currencies, currency unit or units or composite currency
or currencies in which, and other terms and conditions upon which Securities of
or within the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of or within the
series shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of or within the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent, or how they may be chosen from time to time;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of or within the series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section
502 or, if applicable, the portion of the principal amount of Securities of or
within the series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of or within the
series shall be payable or in which the Securities of or within the series
shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of or within
the series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on one
or more currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
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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 or within
the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner of,
and identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of or within
the series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of or within the series may be exchanged
for Registered Securities of or within the series and vice versa (if permitted
by applicable laws and regulations), whether any Securities of or within the
series are to be issuable initially in temporary global form and whether any
Securities of or within the series are to be issuable in permanent global form
(with or without coupons) and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for Securities
of such series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other than in
the manner provided in Section 305, and, if Registered Securities of or within
the series are to be issuable as a global Security, the identity of the
depository for such series;
(17) the date as of which any Bearer Securities of or within the
series and any temporary global Security representing Outstanding Securities of
or within the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest
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payable on a temporary global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of or within the series are to be issued upon
the exercise of debt warrants, the time, manner and place for such Securities
to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of or
within the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such Additional Amounts (and
the terms of any such option);
(23) the obligation, if any, of the Company to permit the conversion
of the Securities of such series into shares of Capital Stock of the Company
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 or rate
and any requirements relative to the reservation of such shares for purposes of
conversion);
(24) if convertible, any applicable limitations on the ownership or
transferability of the Capital Stock into which such Securities are
convertible; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form,
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established
by action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be
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certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order for
authentication and delivery of such Securities.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination), shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities of such
series other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chief Executive Officer, its President or a
Vice President, and attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Securities and coupons may be manual
or facsimile signatures of the present or any future such authorized officer
and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. Except
as permitted by Section 306, the
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Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If all of the Securities of any series are not to be issued at one
time and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall
be fully protected in relying upon:
(i) an Opinion of Counsel complying with Section 102 and
stating that:
(a) the form or forms of such Securities and any coupons have
been, or will have been upon compliance with such procedures
as may be specified therein, established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been,
or will have been upon compliance with such procedures as may
be specified therein, established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed pursuant to such procedures as may be
specified therein, and executed and delivered by the Company
to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights generally and to general equitable
principles and to such other matters as may be specified
therein; and
(ii) an Officers' Certificate complying with Section 102 and stating
that all conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been, or will have been upon compliance with
such procedures as may be specified therein, complied with and that, to the
best of the knowledge of the signers of such certificate, no Event of Default
with respect to such Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties, obligations or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
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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 a Company Order, 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 certificate, with appropriate modifications to
cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or the Security to which such coupon appertains
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued or sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(b) or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
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(accompanied by any non-matured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security shall,
unless otherwise provided therein, be delivered to the London office of a
depository or common depository (the "Common Depository"), for the benefit of
Euroclear and CEDEL.
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in an aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of or within the same series of authorized
denominations and of like tenor as the portion of such temporary global
Security to be exchanged. The definitive Securities to be delivered in exchange
for any such temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depository, such
temporary global Security, if any, 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, if any, 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
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<PAGE> 35
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 or CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like unless
such Person takes delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
or CEDEL on such Interest Payment Date upon delivery by Euroclear or CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-1 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
or 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.
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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 and to require that a copy of the Security Register in written form be
delivered to it from time to time as reasonably requested.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
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security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in a permitted exchange for
a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making the exchange
is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depository 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 depository 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 depository with
respect to such global Security or Securities. If (x) a successor depository
for such global Security or Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
unwillingness, inability or ineligibility, (y) an Event of Default has occurred
and is continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depository for such
global Security or Securities or (z) the Company, in its sole discretion,
determines at any time that all Outstanding Securities (but not less than all)
of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities (provided,
however, the Company may not make such determination during the 40-day
restricted period provided by Regulation S under the Securities Act or during
any other similar period during which the Securities must be held in global
form as may be required by the Securities Act), then the Company shall execute,
and the Trustee shall
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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 an interest for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided in
the permanent global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such interest
may be so exchanged, the Company shall execute, and the Trustee shall
authenticate and deliver definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC or such other depository as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer Security delivered
in exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance with
the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange or redemption shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the 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
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exchange of Securities, other than exchanges pursuant to Section 304, 906 or
1107 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security
may be among those selected for redemption during a period beginning at the
opening of business 15 days before selection of the Securities to be redeemed
under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue or to register the
transfer or exchange of any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company
or the Trustee to save each of them or any agent of either of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of actual 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.
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Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains, pay
such Security or coupon; provided, however, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any Additional
Amounts with respect to, Bearer Securities shall, except as otherwise provided
in Section 1002, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 301,
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered Security may at
the Company's option be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located inside the United
States.
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Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depository, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(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
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after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each place of payment,
but such publications shall not be a condition precedent to the establishment
of such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
(and premium or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of
any coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect
to such global Security or impair, as between such depository and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such global Security.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Securities
and coupons and Securities and coupons surrendered directly to the Trustee for
any such purpose shall be promptly 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. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee from time to time and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it prior to such destruction.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360- day year consisting of twelve 30-day
months.
SECTION 311. DETERMINATIONS BY THE COMPANY.
Upon request by the Trustee, the Company will determine the amount of
any Make- Whole Payments or Additional Amounts, or the principal amount owing
at a particular time with respect to any Original Issue Discount Security or
Indexed Security by an Officer's Certificate. The Trustee shall be entitled to
rely on any such Officer's Certificate without independent verification.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series herein expressly provided for and any
right to receive Additional Amounts, as provided in Section 1011), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required
or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been
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
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(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in
the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable)or the
Stated Maturity or Redemption Date, as the case may be;
(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, shall survive.
In the event that there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met.
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SECTION 402. APPLICATION OF TRUST FUNDS.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium or Make- Whole Amount, if any), and any interest and Additional Amounts
for whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
Subject to any modifications, additions or deletions relating to any
series of Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether or not it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of or within that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when 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
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(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor), having an
aggregate principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness 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 entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any of its Subsidiaries in
an aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgments, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days; or
(7) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
or
(D) makes a general assignment for the benefit of its
creditors; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or
substantially all of either of its property, or
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(C) orders the liquidation of the Company or any
Significant Subsidiary and the order or decree
remains unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title
11, U.S. Code or any similar Federal or state law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, and the
Make-Whole Amount, if any, on, all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or
specified portion thereof shall become immediately due and payable.
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 is payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all
Outstanding Securities of that series and any
related coupons;
(B) the principal of (and premium or Make-Whole
Amount, if any, on) any Outstanding Securities of
that series which have become due otherwise than
by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided
for in such Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate
or rates borne by or provided for in such
Securities; and
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(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make-Whole Amount,
if any) or interest on Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity, then
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium or Make Whole Amount, if any) and interest and Additional Amounts, with
interest upon any overdue principal (and premium or Make-Whole Amount, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest or Additional Amounts, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the
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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 proofs of 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.
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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.
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;
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(2) the Holders of not less than a majority in principal amount of
the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM OR MAKE-WHOLE AMOUNT, IF ANY, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired or affected 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
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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 (but the Trustee shall have no obligation as to
the determination of such undue prejudice).
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 or
Additional Amounts payable with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or in the case of
redemption, on or after the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series of which the Trustee has knowledge, 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) of this Indenture 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. The Trustee shall not be deemed to have notice of any default of which
it does not have actual knowledge.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(3) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to
the Trustee for authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(4) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action
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hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(5) the Trustee may consult with counsel and as a condition to the
taking, suffering or omission of any action hereunder may demand an Opinion of
Counsel, and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(9) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith at the direction of the Holders of a majority in
principal amount of the Securities or otherwise reasonably believed by the
Trustee 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;
(10) the Trustee may construe any of the provisions of this Indenture
or Indentures supplemental hereto insofar as they appear ambiguous or
inconsistent, and any construction of the Trustee in good faith shall be
controlling, provided it is not contrary to law or manifestly incorrect;
(11) the permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty; and
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(12) except as may be required by an applicable law or regulation
that may not be waived by the terms of this Indenture, the Trustee shall not be
required to give any surety or bond in respect of the execution of the trusts
and powers under this Indenture.
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. The Trustee shall not be
responsible for the content of any prospectus or other disclosure document
relating to the Securities, or for the application of the proceeds of any of
the Securities.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar, Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on, or investment of, any money received by it
hereunder.
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, including extraordinary services
rendered in connection with or during the continuation of a default hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
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except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense, arising out of
or in connection with the acceptance or administration of the trust or trusts
or the performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder except to the extent
any such loss, liability or expense may be attributable to its own negligence
or bad faith.
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 corporate Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a) and shall have a
combined capital and surplus of at least $10,000,000 or shall be a subsidiary
of a corporation which shall be a Person that has a combined capital and
surplus of at least $10,000,000 and which unconditionally guarantees the
obligations of the Trustee hereunder. If such Trustee or Person publishes
reports of condition at least annually, pursuant to law or the requirements of
a 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 Trustee or Person 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.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written
request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 of this Indenture 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 authority granted by the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder
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of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee,
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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
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delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $25,000,000 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 to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of or within the series
with respect to which such Authenticating Agent will serve in the manner set
forth in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's
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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.
, as Trustee
----------------------------
By:
-------------------------------------
as Authenticating Agent
By:
-------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
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.
If required by TIA Section 313(a), within 60 days after July 15th of
each year commencing with the first July 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report
dated as of such date.
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
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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 is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
SECTION 704. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(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 lists shall be required to be furnished.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other Person,
provided that in any such case, (i) either the Company shall be the continuing
entity, or the successor entity (if other than the Company) shall be a Person
organized and existing under the laws of the United States or a State thereof
and such successor entity shall expressly assume the due and punctual payment
of the principal of (and premium or Make-Whole Amount, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to Section 1011) on
all of the Securities, according to their 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 Person and (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor entity, such successor entity
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the party of the first part, and the predecessor
entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor entity, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
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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 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
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(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium,
Make-Whole Amount or Interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination shall (i) not adversely affect the rights
of the Holders of any Security of any series created prior to the execution of
such supplemental indenture entitled to the benefit of such provision; or (ii)
become effective only when there is no such Security Outstanding; 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 Capital
Stock; 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 or to make any other changes, provided that in each case, such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(10) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided in each case that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related coupons
or any other series of Securities in any material respect.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or
any premium or Make-Whole Amount payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to Section
1011 (except as otherwise contemplated or permitted under this Indenture), 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, the principal of any Security or
any premium or Make-Whole Amount or any Additional Amounts payable in respect
thereof or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the case may
be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase the required percentage to effect such action
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 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 and that all conditions precedent to the execution of such
supplemental indenture have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may bear a
notation as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT, IF
ANY, INTEREST AND ADDITIONAL AMOUNTS.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium or Make-Whole Amount, if any) and interest on and any Additional
Amounts payable in respect of the Securities of that series in accordance with
the terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1011 in respect
of principal of (or premium or Make-Whole Amount, if any, on) such a Security,
shall be payable only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally
mature. Unless otherwise specified with respect to Securities of any series
pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered Securities,
the Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment or conversion, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain: (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment or conversion, where any
Registered Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment or
conversion in the circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1011) or
conversion; provided, however, that if the Securities of that series are listed
on the Luxembourg Stock Exchange, The International Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so
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require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg, London or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable
thereto, in each Place of Payment for that series located outside the United
States an office or agency where any Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1011) at the offices specified in the Security,
in London, England, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium, Make-Whole Amount or interest on
or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if the Securities
of a series are payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any Additional Amounts or Make-Whole
Amount payable on Securities of such series pursuant to Section 1011) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium, interest, Additional Amounts or Make- Whole Amount, as
the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this Indenture, is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series and related coupons, if
any, may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be
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payable in a Foreign Currency, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on or Additional Amounts in respect of, any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
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,
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 or Additional
Amounts in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(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 or Additional
Amounts; 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.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
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. ADDITIONAL COVENANTS.
The Company will do or cause to be done all such other things
required under any supplemental indenture executed in accordance with this
Indenture.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Company and its
Subsidiaries; 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 its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities of any
series.
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SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all of its properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any
Subsidiary from discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business and not disadvantageous in any material respect
to the Holders of Securities.
SECTION 1007. INSURANCE.
The Company will, and will cause each of its Subsidiaries to, keep
all of its insurable Properties insured against loss or damage at least equal
to their then full insurable value with financially sound and reputable
insurance companies.
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1009. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements") if
the Company were so subject, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so subject.
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)
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of the Exchange Act if the Company were subject to such Sections, and (ii) file
with the Trustee copies of annual reports, quarterly reports and other
documents which the Company 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 1010. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year a brief certificate 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
1010, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1011. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as may be specified as
contemplated by Section 301. Whenever in this Indenture there is mentioned, in
any context except in the case of Section 502(1), the payment of the principal
of or any premium, Make-Whole Amount or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established pursuant to Section 301 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or Make-Whole Amount or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent
or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be
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made to Holders of Securities of that series or any related coupons who are not
United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of or
within the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent
the Additional Amounts, if any, required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall not
so receive the above-mentioned certificate, then the Trustee or such Paying
Agent shall be entitled (i) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest with respect to
any Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal and
interest with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
SECTION 1012. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1009, inclusive, and
with any other term, provision or condition with respect to the Securities of
any series specified in accordance with Section 301 (except any such term,
provision or condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such series, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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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, that on and
after the Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any,
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall cease to accrue on
and after said date;
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company, the
Trustee for such series and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to the
redemption on this Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made;
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(10) the CUSIP number of such Security, if any, provided that neither
the Company nor the Trustee shall have any responsibility for any such CUSIP
number; and
(11) if applicable, that a Holder of Securities who desires to
convert Securities to be redeemed 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.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, which it may not do in the case of a sinking fund payment under
Article Twelve, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that except as otherwise provided with respect to Securities convertible into
Capital Stock, 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
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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 Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
[RESERVED]
ARTICLE THIRTEEN
[RESERVED]
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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 to be applicable to the Securities of any series, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be specified
pursuant to Section 301 with respect to any Securities), shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at
its option by Board Resolution at any time, with respect to such Securities and
any coupons appertaining thereto, elect to defease such Outstanding Securities
and any coupons appertaining thereto pursuant to Section 1402 (if applicable)
or Section 1403 (if applicable) upon compliance with the conditions set forth
below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by such
Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under such Securities
and any coupons appertaining thereto and this Indenture insofar as such
Securities and any coupons appertaining thereto are concerned (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B)the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1011, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
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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 Sections 1004 to 1009, inclusive, and,
if specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1004
to 1009, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under Section
501(4) or 501(9) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 1402
or Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount in such currency, currencies or currency
unit in which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in which such Securities
and coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination thereof
in an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee
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(or other qualifying trustee) to pay and discharge, (i) the principal of (and
premium or Make- Whole Amount, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto, provided
that the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such Government Obligations to said payments with respect to
such Securities. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to redeem all or
any portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound (and shall not cause the Trustee to have a conflicting
interest pursuant to Section 310(b) of the TIA with respect to any Security of
the Company).
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities and
any coupons appertaining thereto shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 501(7) and 501(8) are concerned,
at any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
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(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be) registration is not required
under the Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) After the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount,
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if any), and interest, if any, on such Security as the same becomes due out of
the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the currency or currency unit in which such Security becomes
payable, as a result of such election or Conversion Event based on the
applicable market exchange rate for such currency or currency unit in effect on
the second Business Day prior to each payment date, except, with respect to a
Conversion Event, for such currency or currency unit in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than
21 nor more than 90 days prior to the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section
1501, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or in London for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than 5 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
78
<PAGE> 87
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether
such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
104 and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
79
<PAGE> 88
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of or within the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the 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
80
<PAGE> 89
of the Holders of any or all series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Article
Six) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS.
Subject to Article Six, the execution of any instrument by a Holder
or his agent or proxy may be proved in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers hereunto duly authorized, all as
of the day and year first above written.
JDN REALTY CORPORATION
By: /s/ William J. Kerley
-----------------------------------
Name: William J. Kerley
Title: Chief Financial Officer
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ Emily E. Katt
-----------------------------------
Name: Emily E. Katt
Title: Vice President
81
<PAGE> 90
EXHIBIT A
FORMS OF CERTIFICATION
<PAGE> 91
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
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 1. 165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States Financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise ____________________ or its agent that such
financial institution will provide a certificate within a reasonable time
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by a financial institution for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1. 1635(c)(2)(i)(D)(7)), and, such financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), certifies that it has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
operating procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date. This certificate excepts and does not
related to __________________________ (U.S. $) of such interest in the
above-captioned Securities in respect of which we are not able to certify and
as to which we understand an exchange for an interest in a permanent global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
A-1
<PAGE> 92
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________, 19__ (To be dated no earlier than the 15th day
prior to the earlier of (i) the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable)
-------------------------------------
(Name of Person Making Certification)
-------------------------------------
(Authorized Signatory)
Name:
--------------------------------
Title:
-------------------------------
A-2
<PAGE> 93
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
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, _____________
_________________________ (U.S. $) principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such financial institution has agreed, on its own behalf or through
its agent, that we may advise ___________________ or its agent that such
financial institution will provide a certificate within a reasonable time
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B), or (C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by a financial institution for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and that such financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia) and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-3
<PAGE> 94
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
-------------------- -----
(To be dated no earlier than the earlier of the
Exchange Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as applicable)
--------------------------------
-------------------------------,
as
------------------------------
--------------------------------
By:
--------------------------------
A-4
<PAGE> 1
EXHIBIT 4.2
JDN REALTY CORPORATION
AND
First Union National Bank
as Trustee
----------------
First Supplemental Indenture
Dated as of July 31, 1997
----------------
Supplement to Indenture dated as of July 15, 1997
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of July 31, 1997, between JDN
Realty Corporation, a Maryland corporation (hereinafter called the "Company"),
having its principal office at 3340 Peachtree Road, Suite 1530, Atlanta,
Georgia 30326, and First Union National Bank, a national banking association
organized under the laws of the United States of America (hereafter called the
"Trustee"), having a Corporate Trust Office at 11th Floor, 999 Peachtree
Street, N.E., Atlanta, Georgia 30309-9094, as Trustee under the Indenture (as
hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of July 15, 1997 entered
into an Indenture, (hereinafter called the "Indenture") providing for the
issuance by the Company from time to time of its senior debt securities
evidencing its unsecured and unsubordinated indebtedness (the "Securities");
WHEREAS, no Securities have been issued under the Indenture;
WHEREAS, the Company desires to issue two series of senior debt
securities under the Indenture, the "Notes" (as defined below), and has duly
authorized the creation of the Notes and the execution and delivery of this
First Supplemental Indenture to modify the Indenture and provide certain
additional provisions as hereinafter described; and
WHEREAS, the Company and the Trustee deem it advisable to enter into
this First Supplemental Indenture for the purposes of providing for the rights,
obligations and duties of the Trustee with respect to the Notes and to set
forth certain specific provisions with respect thereto;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the Trustee
covenant and agree, for the equal and proportionate benefit of all Holders of
the Notes, as follows:
ARTICLE ONE
CREATION OF THE NOTES
Section 1.01. Pursuant to the terms hereof and the Indenture, the
Company hereby creates a series of its Notes known as the "6.80% Notes due
2004" and a series of Notes known as the "6.95% Notes due 2007," each of which
series of Notes shall be deemed Securities for all purposes of the Indenture.
Section 1.02. The definitive form of the 6.80% Notes due 2004 shall
be substantially in the form set forth in Exhibit A attached hereto, which is
incorporated herein and
<PAGE> 3
made part hereof. The 6.80% Notes due 2004 shall bear interest, be payable and
have such other terms as are stated in the form of definitive 6.80% Note due
2004 or in the Indenture, as supplemented by this First Supplemental Indenture.
Section 1.03. The 6.80% Notes due 2004 shall not exceed $75,000,000
in aggregate principal amount, and may, upon the execution and delivery of this
First Supplemental Indenture or from time to time thereafter, be executed by
the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said 6.80% Notes due 2004 to or upon
the written order of the Company, signed by its President or a Vice President
and by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, without further action by the Company.
Section 1.04. The Trustee's certificate of authentication to be borne
by the 6.80% Notes due 2004 shall be substantially of the tenor and purport as
provided in the Indenture.
Section 1.05. The definitive form of the 6.95% Notes due 2007 shall
be substantially in the form set forth in Exhibit B attached hereto, which is
incorporated herein and made part hereof. The 6.95% Notes due 2007 shall bear
interest, be payable and have such other terms as are stated in the form of
definitive 6.95% Notes due 2007 or in this First Supplemental Indenture.
Section 1.06. The 6.95% Notes due 2007 shall not exceed $85,000,000
in aggregate principal amount, and may, upon the execution and delivery of this
First Supplemental Indenture or from time to time thereafter, be executed by
the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said 6.95% Notes due 2007 to or upon
the written order of the Company, signed by its President or a Vice President
and by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, without further action by the Company.
Section 1.07. The Trustee's certificate of authentication to be borne
by the 6.95% Notes due 2007 shall be substantially of the tenor and purport as
provided in the Indenture.
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
Section 2.01. Pursuant and subject to the Indenture, the Company and
the Trustee hereby constitute the Trustee as trustee to act on behalf of the
Holders of the Notes, effective upon execution and delivery of this First
Supplemental Indenture. By execution, acknowledgement and delivery of this
First Supplemental Indenture, the Trustee hereby accepts appointment as trustee
with respect to the Notes, and agrees to perform such trusts upon the terms and
conditions in the Indenture and in this First Supplemental Indenture set forth.
Section 2.02. Any rights, powers, duties and obligations by any
provisions of the Indenture conferred or imposed upon the Trustee shall,
insofar as permitted by law, be conferred or imposed upon and exercised or
performed by the Trustee with respect to the Notes.
-2-
<PAGE> 4
ARTICLE THREE
DEFINITIONS
Pursuant to Section 301(25) of the Indenture, so long as any of the
Notes are Outstanding, the following definitions shall be applicable to the
Notes, be included as defined as terms for all purpose of the Indenture and, to
the extent inconsistent with the definition of such term contained in Section
101 of the Indenture, shall replace such definition:
"Acquired Debt" means Debt of a Person (i) existing at the time
such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary
or such acquisition. Acquired Debt shall be deemed to be incurred on the date
of the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Annual Debt Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of the Company
and its Subsidiaries in accordance with GAAP.
"Consolidated Income Available for Debt Service" for any period
means Consolidated Net Income plus amounts which have been deducted in
determining Consolidated Net Income during such period for (i) Consolidated
Interest Expense, (ii) provision for taxes of the Company and its Subsidiaries
based on income, (iii) amortization (other than amortization of debt discount)
and depreciation, (iv) provisions for losses from sales or joint ventures, (v)
increases in deferred taxes and other non-cash items, (vi) charges resulting
from a change in accounting principles, and (vii) charges for early
extinguishment of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for gains from
sales or joint ventures, and (b) decreases in deferred taxes and other non-cash
items.
"Consolidated Interest Expense" means, for any period, and
without duplication, all interest (including the interest component of rentals
on capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment-in-kind, zero coupon and other like
securities) of the Company and its Subsidiaries, but excluding legal fees,
title insurance charges and other out-of-pocket fees and expenses incurred in
connection with the issuance of Debt, all determined in accordance with GAAP.
"Consolidated Net Income" for any period means the amount of net
income (or loss) of the Company and its Subsidiaries for such period determined
in accordance with GAAP after eliminating intercompany accounts and
transactions.
"Debt" of the Company or any of its Subsidiaries means any
indebtedness of the Company or any of its Subsidiaries, whether or not
contingent, and without duplication, in respect of (i) borrowed money evidenced
by bonds, notes, debentures or similar instruments,
-3-
<PAGE> 5
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any of its
Subsidiaries, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property except
any such balance that constitutes an accrued expense or trade payable or (iv)
any lease of property by the Company or any of its Subsidiaries as lessee which
is reflected in the balance sheet of the Company or any of its Subsidiaries 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 balance sheet
of the Company or any of its Subsidiaries in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by the Company
or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), indebtedness of another person (other than the Company or any
Subsidiary) (it being understood that Debt shall be deemed to be incurred by
the Company or any of its Subsidiaries whenever the Company or any of its
Subsidiaries shall create, assume, guarantee or otherwise become liable in
respect thereof). As used herein "intercompany Debt" shall the meaning ascribed
hereto in section 5.01.
"Notes" means the Company's 6.80% Notes due 2004 and its 6.95%
Notes due 2007.
"Recourse Indebtedness" means Debt other than Secured Debt as to
which the liability of the obligor thereon is limited to its interest in the
collateral securing such Secured Debt, provided that no such Secured Debt shall
constitute Recourse Indebtedness by reason of provisions therein for imposition
of full recourse liability on the obligor for certain wrongful acts,
environmental liabilities, or other customary exclusions from the scope of
so-called "non-recourse" provisions.
"Secured Debt" means Debt secured by any mortgage, trust deed,
deed of trust, deed to secure debt, security agreement, pledge, conditional
sale or other title retention agreement, capitalized lease, or other like
agreement granting or conveying security title to or a security interest in
real property or other tangible assets, other than those relating to
intercompany Debt. For purposes hereof, such Debt shall become Secured Debt at
the time it first becomes secured by execution of any of the documents,
instruments or agreements described in the immediately preceding sentence.
"Senior Executive Group" shall mean, collectively, those
individuals holding the offices of Chairman, President, Chief Executive
Officer, Chief Financial Officer or any Vice President of the Company.
"Subsidiary" means (i) any corporation or other entity the
majority of the shares of the non-voting capital stock or other equivalent
ownership interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Company, and the majority of the
shares of the voting capital stock or other equivalent ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company,
-4-
<PAGE> 6
any other Subsidiary, and/or one or more individuals of the Senior Executive
Group (or, in the event of death or disability of any of such individuals,
his/her respective legal representative(s)), or such individuals' successors in
office as an officer of the Company or the Secretary of such Subsidiary, and
(ii) any other entity (other than the Company) the accounts of which are
consolidated with the accounts of the Company or any Subsidiary.
"Total Assets" as of any date means the sum of (i) Undepreciated
Real Estate Assets and (ii) all other assets of the Company and its
Subsidiaries determined in accordance with GAAP (but excluding intangibles and
accounts receivable) after eliminating intercompany accounts and transactions.
"Total Unencumbered Assets" as of any date means the sum of (i)
those Undepreciated Real Estate Assets not securing any portion of Secured Debt
and (ii) all other assets of the Company and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with GAAP (but excluding
accounts receivable and intangibles) after eliminating intercompany accounts
and transactions.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization,
determined in accordance with GAAP.
"Unsecured Debt" means Debt of the Company or any Subsidiary
that is not Secured Debt, excluding intercompany Debt.
ARTICLE FOUR
EVENTS OF DEFAULT
Pursuant to Section 501 of the Indenture, so long as any of the Notes
are Outstanding, the following event shall replace Section 501(5) of the
Indenture as an Event of Default with respect to any series of the Notes:
A default under any evidence of Recourse Indebtedness of the Company,
or under any bond, debenture, note, mortgage, indenture or other instrument of
the Company (including a default with respect to Securities of any series other
than such series) under which there may be issued or by which there may be
secured any Recourse Indebtedness of the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor), whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding $5,000,000
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 $5,000,000, becoming
or being declared due and payable prior to the date on which it would otherwise
have become due or payable, without such
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<PAGE> 7
indebtedness having been discharged, or such acceleration having being
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 such 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.
ARTICLE FIVE
COVENANTS OF THE COMPANY
Pursuant to Section 301(15) of the Indenture, so long as any of the
Notes are Outstanding, the Company covenants and agrees as follows:
Section 5.01. Limitation on Incurrence of Total Debt.
The Company will not, and will not permit a Subsidiary to, incur
any Debt, other than intercompany Debt (representing Debt to which the
only parties are the Company and any of its Subsidiaries, but only so long
as such Debt is held solely by the Company and any Subsidiary) if, after
giving effect to the incurrence of such additional Debt, the aggregate
principal amount of all outstanding Debt of the Company and its
Subsidiaries determined in accordance with GAAP is greater than 60% of (i)
Total Assets of the Company and its Subsidiaries as of the end of the
fiscal quarter covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Securities and Exchange Commission (or, if such filing is not
permitted under the Securities and Exchange Act of 1934, with the Trustee)
prior to the incurrence of such additional Debt plus (ii) the increase, if
any, in the Total Assets of the Company and its Subsidiaries from the end
of such quarter, including, without limitation, any increase in Total
Assets resulting from the incurrence of such additional Debt minus (iii)
the decrease, if any, in the Total Assets of the Company and its
Subsidiaries from the end of such quarter (the Total Assets of the Company
and its Subsidiaries as so adjusted is referred to as the "Adjusted Total
Assets").
Section 5.02. Limitation on Incurrence of Secured Debt.
The Company will not, and will not permit any Subsidiary to,
incur any Secured Debt of the Company or any Subsidiary other than
intercompany Debt, if, after giving effect to the incurrence of such
additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt of the Company and its Subsidiaries is greater than 40% of
the Adjusted Total Assets of the Company and its Subsidiaries.
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<PAGE> 8
Section 5.03. Debt Service Coverage.
The Company will not, and will not permit any Subsidiary to,
incur any Debt other than intercompany Debt if the ratio of Consolidated
Income Available for Debt Service to the Annual Debt Service Charge for
the period consisting of the four consecutive fiscal quarters (for which
financial statements are available) most recently ended prior to the date
on which such additional Debt is to be incurred shall have been less than
1.5 to 1, on a pro forma basis after giving effect to the incurrence of
such Debt and to the application of the proceeds thereof, and calculated
on the assumption that (i) such Debt and any other Debt incurred by the
Company or its Subsidiaries since the first day of such four-quarter
period and the application of the proceeds thereof, including to refinance
other Debt, had occurred at the beginning of such period, (ii) the
repayment or retirement of any other Debt by the Company or its
Subsidiaries since the first day of such four-quarter period had been
repaid or retired at the beginning of such period (except that, in making
such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during
such period), (iii) in the case of Acquired Debt or Debt in connection
with any acquisition since the first day of such four-quarter period, the
related acquisition had occurred as of the first day of such period with
the appropriate adjustments with respect to the acquisition being included
in the pro forma calculation and (iv) in the case of any increase or
decrease in Total Assets of the Company and its Subsidiaries, or any other
acquisition or disposition by the Company or any Subsidiary of any asset
or group of assets, since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such increase, decrease or other acquisition or
disposition or any related repayment of Debt had occurred as of the first
day of such period with the appropriate adjustments to revenues, expenses
and Debt levels with respect to such increase, decrease or other
acquisition or disposition being included in such pro forma calculation.
Section 5.04. Maintenance of Total Unencumbered Assts.
The Company and its Subsidiaries are required to maintain Total
Unencumbered Assets of not less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt of the Company and its
Subsidiaries.
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Each and every term and condition contained in the
Indenture shall apply to this First Supplemental Indenture with the same force
and effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate to make the same
conform to this First Supplemental Indenture. As supplemented by this First
Supplemental Indenture, the Indenture shall be read, taken and construed as one
and the
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<PAGE> 9
same instrument; provided, however, that the rights, duties and obligations of
the Trustee in this First Supplemental Indenture shall be limited to those
matters expressly relating to the Notes.
Section 6.02. Nothing contained in this First Supplemental Indenture
shall or shall be construed to confer upon any person other than a Holder the
Notes, the Company and the Trustee any right or interest to avail itself or
himself, as the case may be, of any benefit under any provision of the
Indenture or this First Supplemental Indenture.
Section 6.03. All capitalized terms which are used herein and not
otherwise defined herein are defined in the Indenture and are used herein with
the same meanings as Indenture.
Section 6.04. This First Supplemental Indenture shall be effective as
of the date first above written and upon the execution and delivery hereof by
each of the parties hereto.
Section 6.05. This First Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 6.06. This First Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 6.07. This Supplemental Indenture shall cease to be of
further effect upon compliance with Section 401 of the Indenture with respect
to the Notes created hereby.
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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first above written.
JDN REALTY CORPORATION
By: /s/ William J. Kerley Dated: July 31, 1997
--------------------------------
Name: William J. Kerley
------------------------------
Title: Chief Financial Officer
-----------------------------
FIRST UNION NATIONAL BANK
as Trustee
By: /s/ Emily E. Katt Dated: July 31, 1997
--------------------------------
Name: Emily E. Katt
------------------------------
Title: Vice President
-----------------------------
Attest:
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<PAGE> 11
ACKNOWLEDGMENT
STATE OF
-------------
) ss:
COUNTY OF
------------
On the ___ day of July, 1997, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that he is the
_________________ of JDN REALTY CORPORATION, one of the parties described in
and which executed the foregoing instrument, and that he signed his name
thereto by authority of the Board of Directors.
[Notarial Seal]
- ----------------------------------
Notary Public
Commission Expires
STATE OF
-------------
) ss:
COUNTY OF
------------
On the ____ day of July, 1997, before me personally came ___________,
to me known, who, being by me duly sworn, did depose and say that he/she is a
_____________ of First Union National Bank, one of the parties described in and
which executed the foregoing instrument, and that he/she signed his/her name
thereto by authority of the Board of Directors.
[Notarial Seal]
- ----------------------------------
Notary Public
Commission Expires
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<PAGE> 12
EXHIBIT A
[Form of Face of Note]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
JDN REALTY CORPORATION
6.80% NOTE DUE 2004
REGISTERED PRINCIPAL AMOUNT
No.: $75,000,000
CUSIP No.:
<PAGE> 13
JDN REALTY CORPORATION, a corporation incorporated and existing under
the laws of the State of Maryland (hereinafter called the "Company," which term
includes any successor under the Indenture herein referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, upon
presentation, the principal sum of SEVENTY-FIVE MILLION DOLLARS ($75,000,000)
on August 1, 2004 at the office or agency of the Company, and to pay interest
thereon from August 4, 1997, or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on February 1 and August 1 in each year, commencing
February 1, 1998, at the rate of 6.80% per annum, computed on the basis of a
360-day year comprised of twelve 30-day months until the entire principal
hereof is paid or made available for payment. If any Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
will be postponed to the next succeeding Business Day. The interest so payable,
and punctually paid or duly provided for on any Interest Payment Date will, as
provided for in the Indenture, be paid to the person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest which shall be the 15th
calendar day (whether or not a Business Day) next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not more than 15 days and not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this Series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, or Make-Whole Amount, if any, and
interest on, the Securities will be made at the office or agency of the Trustee
maintained for that purpose at 11th Floor, 999 Peachtree Street, N.E., Atlanta,
Georgia or elsewhere as provided in the Indenture or its nominee in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by (i) check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer of funds to an account of the Person
entitled thereto maintained within the United States. If this Security is in
global form, all such payments will be made by wire transfer of immediately
available funds.
Securities of this series may be redeemed at any time at the option
of the Company, in whole or in part, upon notice of not more than 60 nor less
than 30 days prior to the Redemption Date, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Securities.
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<PAGE> 14
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
Unless the Certificate of Authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 15
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JDN REALTY CORPORATION
Dated: August 4, 1997 By:
------------------------------
name:
title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Union National Bank
as Trustee
By: Dated: August 4, 1997
------------------------------
Authorized Officer
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<PAGE> 16
[Form of Reverse of Note]
6.80% NOTE DUE 2004
This Security is one of a duly authorized issue of securities of the
Company designated as the 6.80% Notes due 2004 (herein called the
"Securities"), issued and to be issued in one or more series under an
Indenture, dated as of July 15, 1997, as supplemented by the First Supplemental
Indenture, dated as of July 31, 1997, and as the same may be supplemented from
time to time thereafter in accordance with the terms thereof (as so
supplemented, herein called the "Indenture"), between the Company and First
Union National Bank, a national banking association organized under the laws of
the United States of America, as Trustee (herein called the "`Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the first page hereof, limited in aggregate
principal amount to $75,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of such dollar if
such redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been payable
if such redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Securities being redeemed or paid.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For purposes of
calculating the Reinvestment Rate, the most recent
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<PAGE> 17
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Company.
The covenants set forth in Section 5.01 of the First Supplemental
Indenture shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (a) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
If any Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of, and the Make-Whole Amount, if
any, on, the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than a majority in
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee, offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
(and premium or Make-Whole Amount, if any) or any interest thereon and any
Additional Amounts in respect thereon on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Securities of each series at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the
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<PAGE> 18
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
Make-Whole Amount, if any, on, and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
Make-Whole Amount, if any, on, and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this security not defined herein which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to
be printed on
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<PAGE> 19
the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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<PAGE> 20
EXHIBIT B
[Form of Face of Note]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
JDN REALTY CORPORATION
6.95% NOTE DUE 2007
REGISTERED PRINCIPAL AMOUNT
No.: $85,000,000
CUSIP No.:
<PAGE> 21
JDN REALTY CORPORATION, a corporation incorporated and existing under
the laws of the State of Maryland (hereinafter called the "Company," which term
includes any successor under the Indenture herein referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, upon
presentation, the principal sum of EIGHTY-FIVE MILLION DOLLARS ($85,000,000) on
August 1, 2007 at the office or agency of the Company, and to pay interest
thereon from August 4, 1997, or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on February 1 and August 1 in each year, commencing
February 1, 1998, at the rate of 6.95% per annum, computed on the basis of a
360-day year comprised of twelve 30-day months until the entire principal
hereof is paid or made available for payment. If any Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
will be postponed to the next succeeding Business Day. The interest so payable,
and punctually paid or duly provided for on any Interest Payment Date will, as
provided for in the Indenture, be paid to the person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest which shall be the 15th
calendar day (whether or not a Business Day) next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not more than 15 days and not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this Series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, or Make-Whole Amount, if any, and
interest on, the Securities will be made at the office or agency of the Trustee
maintained for that purpose at 11th Floor, 999 Peachtree Street, N.E., Atlanta,
Georgia or elsewhere as provided in the Indenture or its nominee in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by (i) check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer of funds to an account of the Person
entitled thereto maintained within the United States. If this Security is in
global form, all such payments will be made by wire transfer of immediately
available funds.
Securities of this series may be redeemed at any time at the option
of the Company, in whole or in part, upon notice of not more than 60 nor less
than 30 days prior to the Redemption Date, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Securities.
-2-
<PAGE> 22
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
Unless the Certificate of Authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
<PAGE> 23
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JDN REALTY CORPORATION
Dated: August 4, 1997 By:
------------------------------
name:
title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
First Union National Bank
as Trustee
By: Dated: August 4, 1997
---------------------------
Authorized Officer
-4-
<PAGE> 24
[Form of Reverse of Note]
6.95 % NOTE DUE 2007
This Security is one of a duly authorized issue of securities of the
Company designated as the 6.95% Notes due 2007 (herein called the
"Securities"), issued and to be issued in one or more series under an
Indenture, dated as of July 15, 1997, as supplemented by the First Supplemental
Indenture, dated as of July 31, 1997, and as the same may be supplemented from
time to time thereafter in accordance with the terms thereof (as so
supplemented, herein called the "Indenture"), between the Company and First
Union National Bank, a national banking association organized under the laws of
the United States of America, as Trustee (herein called the "`Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the first page hereof, limited in aggregate
principal amount to $85,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of such dollar if
such redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been payable
if such redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Securities being redeemed or paid.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For purposes of
calculating the Reinvestment Rate, the most recent
-5-
<PAGE> 25
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Company.
The covenants set forth in Section 5.01 of the First Supplemental
Indenture shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (a) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
If any Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of, and the Make-Whole Amount, if
any, on, the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than a majority in
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee, offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
(and premium or Make-Whole Amount, if any) or any interest thereon on or after
the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Securities of each series at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the
-6-
<PAGE> 26
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
Make-Whole Amount, if any, on, and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
Make-Whole Amount, if any, on, and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this security not defined herein which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to
be printed on
-7-
<PAGE> 27
the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
-8-
<PAGE> 28
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C> <C>
TEN COMM -- as tenants in common UNIF GIFT/TRANSFER MIN ACT --
TEN ENT -- as tenants by the entireties _____________ Custodian ________________
JT TEN -- as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants in Under Uniform Gift/Transfers to Minors Act
common _________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list
------------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee
- ------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing __________________________, attorney to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:
-----------------------------
------------------------------------------
-9-
<PAGE> 1
EXHIBIT 4.3
Face of Note
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
JDN REALTY CORPORATION
6.80% NOTE DUE 2004
REGISTERED PRINCIPAL AMOUNT
No.: 001 $75,000,000
CUSIP No.: 465917AA0
<PAGE> 2
JDN REALTY CORPORATION, a corporation incorporated and existing under
the laws of the State of Maryland (hereinafter called the "Company," which term
includes any successor under the Indenture herein referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, upon
presentation, the principal sum of SEVENTY-FIVE MILLION DOLLARS ($75,000,000) on
August 1, 2004 at the office or agency of the Company, and to pay interest
thereon from August 4, 1997, or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on February 1 and August 1 in each year, commencing February 1, 1998,
at the rate of 6.80% per annum, computed on the basis of a 360-day year
comprised of twelve 30-day months until the entire principal hereof is paid or
made available for payment. If any Interest Payment Date would otherwise be a
day that is not a Business Day, such Interest Payment Date will be postponed to
the next succeeding Business Day. The interest so payable, and punctually paid
or duly provided for on any Interest Payment Date will, as provided for in the
Indenture, be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest which shall be the 15th calendar day (whether or
not a Business Day) next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this Series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of, Make-Whole Amount, if any, and interest
on, the Securities will be made at the Corporate Trust Office or elsewhere as
provided in the Indenture in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by (i) check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer of funds to an account of the Person entitled thereto maintained within
the United States, provided such Person shall have provided wire transfer
instructions to the Trustee. If this Security is in global form, all such
payments will be made by wire transfer of immediately available funds.
Securities of this series may be redeemed at any time at the option of
the Company, in whole or in part, upon notice of not more than 60 nor less than
30 days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
-2-
<PAGE> 3
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JDN REALTY CORPORATION
Dated: August 4, 1997 By:
------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
First Union National Bank,
as Trustee
By: Dated: August 4, 1997
---------------------------------
Authorized Signatory
-4-
<PAGE> 5
Reverse of Note
6.80% NOTE DUE 2004
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 15, 1997, as supplemented by the
First Supplemental Indenture, dated as of July 31, 1997, and as the same may be
supplemented from time to time thereafter in accordance with the terms thereof
(as so supplemented, herein called the "Indenture"), between the Company and
First Union National Bank, a national banking association organized under the
laws of the United States of America, as Trustee (herein called the "`Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of which this Security is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated as the 6.80% Notes due 2004, limited in
aggregate principal amount to $75,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the
Securities being redeemed or paid.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For purposes of
calculating the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be used.
-5-
<PAGE> 6
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
The covenants set forth in Article 5 of the First Supplemental
Indenture shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (a) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If any Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Securities of this series may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee, offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof (and
premium or Make-Whole Amount, if any) or any interest thereon and any Additional
Amounts in respect thereon on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities of each series at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the
-6-
<PAGE> 7
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, Make-Whole Amount, if
any, on, and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
Make-Whole Amount, if any, on, and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Security not defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
-7-
<PAGE> 8
[REMAINDER OF PAGE INTENTIONALLY BLANK]
-8-
<PAGE> 1
EXHIBIT 4.4
Face of Note
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
JDN REALTY CORPORATION
6.95% NOTE DUE 2007
REGISTERED PRINCIPAL AMOUNT
No.: 001 $85,000,000
CUSIP No.: 465917AB8
<PAGE> 2
JDN REALTY CORPORATION, a corporation incorporated and existing under
the laws of the State of Maryland (hereinafter called the "Company," which term
includes any successor under the Indenture herein referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, upon
presentation, the principal sum of EIGHTY-FIVE MILLION DOLLARS ($85,000,000) on
August 1, 2007 at the office or agency of the Company, and to pay interest
thereon from August 4, 1997, or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on February 1 and August 1 in each year, commencing February 1, 1998,
at the rate of 6.95% per annum, computed on the basis of a 360-day year
comprised of twelve 30-day months until the entire principal hereof is paid or
made available for payment. If any Interest Payment Date would otherwise be a
day that is not a Business Day, such Interest Payment Date will be postponed to
the next succeeding Business Day. The interest so payable, and punctually paid
or duly provided for on any Interest Payment Date will, as provided for in the
Indenture, be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest which shall be the 15th calendar day (whether or
not a Business Day) next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this Series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of, Make-Whole Amount, if any, and interest
on, the Securities will be made at the Corporate Trust Office or elsewhere as
provided in the Indenture in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by (i) check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer of funds to an account of the Person entitled thereto maintained within
the United States, provided such Person shall have provided wire transfer
instructions to the Trustee. If this Security is in global form, all such
payments will be made by wire transfer of immediately available funds.
Securities of this series may be redeemed at any time at the option of
the Company, in whole or in part, upon notice of not more than 60 nor less than
30 days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
-2-
<PAGE> 3
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JDN REALTY CORPORATION
Dated: August 4, 1997 By:
------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
First Union National Bank,
as Trustee
By: Dated: August 4, 1997
--------------------------------
Authorized Signatory
-4-
<PAGE> 5
Reverse of Note
6.95 % NOTE DUE 2007
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 15, 1997, as supplemented by the
First Supplemental Indenture, dated as of July 31, 1997, and as the same may be
supplemented from time to time thereafter in accordance with the terms thereof
(as so supplemented, herein called the "Indenture"), between the Company and
First Union National Bank, a national banking association organized under the
laws of the United States of America, as Trustee (herein called the "`Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of which this Security is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated as the 6.95% Notes due 2007, limited in
aggregate principal amount to $85,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the
Securities being redeemed or paid.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For purposes of
calculating the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be used.
-5-
<PAGE> 6
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
The covenants set forth in Article 5 of the First Supplemental
Indenture shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (a) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If any Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Securities of this series may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee, offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof (and
premium or Make-Whole Amount, if any) or any interest thereon on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities of each series at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the
-6-
<PAGE> 7
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, Make-Whole Amount, if
any, on, and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
Make-Whole Amount, if any, on, and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Security not defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
-7-
<PAGE> 8
[REMAINDER OF PAGE INTENTIONALLY BLANK]
-8-
<PAGE> 9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COMM -- as tenants in common UNIF GIFT/TRANSFER MIN ACT --
TEN ENT -- as tenants by the entireties _____________ Custodian ____________
JT TEN -- as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants in Under Uniform Gift/Transfers to Minors Act
common _______
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list
-----------------------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee
- ------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing__________________________, attorney to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:
-----------------------------
----------------------------------------
-9-
<PAGE> 1
EXHIBIT 5
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
FACSIMILES (615) 244-6380 809 SOUTH MAIN STREET
(615) 244-6804 P.O. BOX 1035
(615) 244-5686 COLUMBIA, TN 38402-1035
(615) 388-6031
August 1, 1997
JDN Realty Corporation
3340 Peachtree Road, N.E.
Suite 1530
Atlanta, Georgia 30326
Re: JDN Realty Corporation -- Prospectus Supplement dated
July 30, 1997 (to the Prospectus dated March 26, 1997)
Ladies and Gentlemen:
We are acting as your counsel in connection with the issuance and sale
of the Company's 6.80% Notes due August 1, 2004 (the "2004 Notes") and 6.95%
Notes due August 1, 2007 (the "2007 Notes" and, together with the 2004 Notes,
the "Notes") in aggregate principal amounts of $75,000,000 and $85,000,000,
respectively, pursuant to the terms of an Underwriting Agreement dated July 30,
1997 between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") and pursuant to the terms of a Terms Agreement dated July 30,
1997 between the Company, Merrill Lynch, BT Securities Corporation and Smith
Barney Inc. (the "Terms Agreement"). A registration statement on Form S-3
(Registration No. 333-22339) (the "Registration Statement"), including the
Prospectus dated March 26, 1997 (the "Prospectus") as supplemented by the
Prospectus Supplement dated July 30, 1997 (the "Prospectus Supplement"),
relating to these securities has been filed with the Securities and Exchange
Commission and was declared effective on March 26, 1997.
As such counsel and in connection with the foregoing, we have examined
and relied upon such records, documents and other instruments as in our judgment
are necessary or appropriate in order to express the opinion hereinafter set
forth, and have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
Based upon and subject to the foregoing and such other matters as we
have deemed relevant, we are of the opinion that the Notes have been duly
authorized by all necessary corporate action and, when delivered and issued upon
payment therefor in the manner and on the terms described in the Registration
Statement, the Prospectus, the Prospectus Supplement, the Underwriting Agreement
and the Terms Agreement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the Prospectus and the Prospectus Supplement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS, PLLC
<PAGE> 1
EXHIBIT 8
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
FACSIMILES (615) 244-6380 809 SOUTH MAIN STREET
(615) 244-6804 P.O. BOX 1035
(615) 244-5686 COLUMBIA, TN 38402-1035
(615) 388-6031
August 1, 1997
JDN Realty Corporation
3340 Peachtree Road
Suite 1530
Atlanta, Georgia 30326
RE: JDN REALTY CORPORATION -- PROSPECTUS SUPPLEMENT DATED
JULY 30, 1997 (TO THE PROSPECTUS DATED MARCH 26, 1997)
Ladies and Gentlemen:
We have acted as special tax counsel to JDN Realty Corporation, a
Maryland corporation (the "Company"), in connection with the public offering of
its 6.80% Notes due August 1, 2004 (the "2004 Notes"), and its 6.95% Notes due
August 1, 2007 (the "2007 Notes," and, together with the 2004 Notes, the
"Notes"), offered in aggregate principal amounts of $75,000,000 and $85,000,000,
respectively, as more fully described in the Company's Prospectus Supplement
dated July 30, 1997 (to the Prospectus dated March 25, 1997), pursuant to a
Registration Statement on Form S-3 (File No. 333-22339) (the "Registration
Statement"). In connection with the public offering, you have requested our
opinion that the Company is qualified as a real estate investment trust ("REIT")
under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended
(the "Code") for its taxable years ending December 31, 1994, December 31, 1995,
and December 31, 1996 and that its current method of organization and operation
will enable it to continue to qualify as a REIT. All capitalized terms in this
opinion which are defined in the Registration Statement or the Prospectus
Supplement shall have the same respective meanings as set forth in the
Registration Statement or the Prospectus Supplement.
In rendering our opinion, we have examined and relied upon the
following documents and other materials:
1. Schedules prepared or delivered by officials of the Company
setting forth:
(a) REIT taxable and gross income for the short taxable year
ended December 31, 1994 and for fiscal years ended December 31, 1995
and 1996, together with a schedule of actual dividends distributed and
projected dividends to be distributed in accordance with Code Section
858 and compliance with the distribution requirements of Code Section
857(a);
(b) Compliance with the applicable REIT ratios or tests for
the fiscal years ended December 31, 1994, 1995, and 1996 and projected
compliance with such tests for the fiscal year ending December 31,
1997, including:
Income tests:
(1) 95% gross income test for the year;
(2) 75% gross income test for the year;
(3) 30% gross income test for the year; and
<PAGE> 2
Asset tests:
(1) 75% asset test at the end of each quarter;
(2) 25% asset test at the end of each quarter;
(3) 10% asset test at the end of each quarter;
(4) 5% asset test at the end of each quarter.
2. The Company's certificate, dated as of August 4, 1997.
In addition, we have examined such additional records, documents,
certificates and other instruments and made such investigations of fact and law
as in our judgement are necessary or appropriate to enable us to render the
opinion expressed below.
In rendering our opinion, we have relied upon the following
representations of the Company. To the extent that the representations of the
Company are with respect to matters set forth in the Code or Treasury
Regulations, we have discussed with the Company's officers the relevant
provisions of the Code, the applicable Treasury Regulations and published
administrative interpretations thereof.
1. The common stock of the Company has been since the completion of the
initial public offering, and will continue to be beneficially owned by over 100
shareholders (persons), as defined for purposes of Section 856(a)(5) of the
Code; and five or fewer shareholders have not owned, directly or indirectly
under the rules of Section 544 as modified by Section 856(h) of the Code, at any
time since the completion of the initial public offering, over 50% in value of
the stock of the Company; and no shareholder will own, directly or indirectly,
over 8% in number of shares or value of the outstanding stock of the Company;
provided, however, that "Excluded Holders" may hold up to the "Excluded Holder
Ownership Limit," as such terms are defined in the Company's Articles of
Incorporation.
2. The Company has at all times and will continue to comply with any
and all procedural requirements for REIT status set forth in Sections 856
through 860 of the Code and the regulations thereunder, including the timely
making of such elections and the obtaining and disclosing of such information as
is required on the federal tax return to be filed by the Company.
3. Additional properties acquired will constitute "real estate assets"
and any other investments made by the REIT will be made in a manner to satisfy
the asset tests of Section 856(c) of the Code.
4. The income from existing and additional leases entered into or
acquired and the income from other investments will not cause the Company to
fail to satisfy the income tests of Section 856(c) of the Code.
5. The Company will actually operate in accordance with its past and
proposed method of operation as described in its filings with the Securities and
Exchange Commission under the Securities Act of 1933 and the Securities Exchange
Act of 1934.
6. The Company had no undistributed "C" corporation earnings and
profits at December 31, 1994, December 31, 1995 or December 31, 1996.
7. The representations contained in the Company's certificate, dated as
of August 4, 1997, are accurate.
8. All partnerships in which the Company may have an ownership interest
will own only "real estate assets" and cash reserves. All activities of those
partnerships will consist of activities permitted to be undertaken by a REIT and
income, other than interest income on cash reserves, shall be "rents from real
property."
9. Each corporation in which the Company has acquired or acquires an
equity interest shall either be a "Qualified REIT Subsidiary" under Section
856(i) of the Code or the Company will not own over ten percent (10%) of the
outstanding voting securities of such corporation or other issuer and the
securities owned of such issuer will not be greater in value than five percent
(5%) of the value of the total assets of the Company.
On the basis of and in reliance of the foregoing, we wish to advise you
that under current law, including relevant statutes, regulations and judicial
and administrative precedent (which law is subject to change on a retroactive
basis), in our opinion:
<PAGE> 3
(a) the Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT under
the Code for its taxable years ended December 31, 1994, December 31,
1995, and December 31, 1996 and the Company's current organization and
method of operation will enable it to continue to meet the requirements
for qualification and taxation as a REIT under the Code; and
(b) the discussion in the Prospectus under the heading
"Federal Income Tax Considerations" is correct in all material respects
and fairly summarizes the federal income tax considerations that are
likely to be material to a holder of Shares.
The Company's qualification and taxation as a REIT depend upon the
Company's ability to meet on a continuing basis, through actual annual operating
and other results, the various requirements under the Code and described in or
incorporated by reference into the Registration Statement with regard to, among
other things, the sources of its gross income, the composition of its assets,
the level of its distributions to stockholders, and the diversity of its stock
ownership. Waller Lansden Dortch & Davis, A Professional Limited Liability
Company will not review the Company's compliance with these requirements on a
continuing basis. Accordingly, no assurance can be given that the actual results
of operations of the Company and its subsidiaries, the sources of their income,
the nature of their assets, the level of the Company's distributions to
stockholders and the diversity of its stock ownership for any given taxable year
will satisfy the requirements under the Code for qualification and taxation as a
REIT.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the Prospectus and the Prospectus Supplement and
under the caption "Federal Income Tax Considerations" in the Prospectus.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS, PLLC
<PAGE> 1
EXHIBIT 25.1
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
----------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) X
-----
----------------------
FIRST UNION NATIONAL BANK
(Exact name of Trustee as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
999 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309 58-1079889
(Address of principal executive office) (Zip Code) I.R.S. Employer Identification No.)
</TABLE>
Emily E. Katt
First Union National Bank
1100 First Union Plaza
999 Peachtree Street N.E.
Atlanta, Georgia 30309
(404) 827-7347
(Name, Address and Telephone Number of Agent for Service)
----------------------
JDN REALTY CORPORATION
(Exact name of obligor as specified in its charter)
MARYLAND
(State or other jurisdiction of incorporation or organization)
58-1468053
(IRS employer identification no.)
3340 PEACHTEE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
(Name, address, including zip code, and telephone number, including area
code, of principal executive offices)
J. DONALD NICHOLS
JDN REALTY CORPORATION
3340 PEACHTEE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
----------------------
$75,000,000 NOTES DUE 2004
(Title of the indenture securites)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE> 2
1. General information.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Atlanta, Georgia.
Federal Deposit Insurance Corporation, Washington, D.C.
Securities and Exchange Commission, Division of Market
Regulation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
(See Note 2 on Page 5)
3. Voting Securities of the Trustee.
The following information is furnished as to each class of
voting securities of the Trustee:
<TABLE>
<CAPTION>
As of May 31, 1997
- -------------------------------------------------------------------------------
Column A Column B
- -------------------------------------------------------------------------------
<S> <C>
Title of Class Amount Outstanding
Common 280,571,082 shares
- -------------------------------------------------------------------------------
</TABLE>
Common Stock, par value $3.33 1/3 a share
4. Trusteeships under other indentures. None.
5. Interlocking directorates and similar relationships with the obligor
or underwriters.
Neither the Trustee nor any of the directors or executive
officers of the Trustee is a director, officer, partner, employee,
appointee or representative of the obligor or of any underwriter for
the obligor.
(See Note 2 on Page 5)
2
<PAGE> 3
6. Voting securities of the Trustee owned by the obligor or its officials.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the
Trustee.
(See Notes 1 and 2 on Page 5)
7. Voting securities of the Trustee owned by underwriters or their
officials.
Voting securities of the Trustee owned by any underwriter and
its directors, partners, and executive officers, taken as a group, do
not exceed one percent of the outstanding voting securities of the
Trustee.
(See Notes 1 and 2 on Page 5)
8. Securities of the obligor owned or held by the Trustee.
The amount of securities of the obligor which the Trustee
owns beneficially or holds as collateral security for obligations in
default does not exceed one percent of the outstanding securities of
the obligor.
(See Note 2 on Page 5)
9. Securities of underwriters owned or held by the Trustee.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of an underwriter
for the obligor.
(See Note 2 on Page 5)
10. Ownership or holdings by the Trustee of voting securities of certain
affiliates or security holders of the obligor.
The Trustee does not own beneficially or hold as collateral
security for obligations in default voting securities of a person,
who, to the knowledge of the Trustee (1) holds 10% or more of the
voting securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor.
(See Note 2 on Page 5)
11. Ownership or holdings by the Trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of a person who, to
the knowledge of Trustee, owns 50 percent or more of the voting
securities of the obligor.
(See Note 2 on Page 5)
3
<PAGE> 4
12. Indebtedness of the obligor to the Trustee.
Not applicable.
13. Defaults by the obligor.
Not applicable.
14. Affiliations with the underwriters.
No underwriter is an affiliate of the Trustee.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee as now in effect.
(See Exhibit 1 of the Form T-1 filed in connection with
Registration Statement No. 333-31863, which is incorporated
herein by reference)
(2) Certificate of Authority of the Trustee to commence
business. (See Exhibit 2 of the Form T-1 filed in
connection with Registration Statement No. 333-31863, which
is incorporated herein by reference)
(3) Authorization of the Trustee to exercise corporate trust
powers. Incorporated in Exhibit (4).
(4) By-Laws of the Trustee, as amended, to date. (See Exhibit 4
of the Form T-1 filed in connection with Registration
Statement No.333-31863, which is incorporated herein by
reference)
(5) Not applicable.
(6) Consent by the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included on Page 6 of this
Form T-1 Statement.
(7) Most recent report of condition of the Trustee. (See
Exhibit 7 of the Form T-1 filed in connection with
Registration Statement No. 333-31863, which is incorporated
herein by reference)
(8) Not applicable.
(9) Not applicable.
4
<PAGE> 5
-----------------------
NOTES
-----------------------
1. Since the Trustee is a member of First Union Corporation, a
bank holding company, all of the voting securities of the Trustee are held by
First Union Corporation. The securities of First Union National Bank are
described in Item 3.
2. Inasmuch as this Form T-1 is filed prior to the ascertainment
by the Trustee of all facts on which to base responsive answers to Items 2, 5,
6, 7, 8, 9, 10 and 11, the answers to said Items are based on incomplete
information. Items 2, 5, 6, 7, 8, 9, 10 and 11 may, however be considered as
correct unless amended by an amendment to this Form T-1.
5
<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Atlanta, and State of Georgia on the 30th day of July 1997.
FIRST UNION NATIONAL BANK
(Trustee)
BY: /s/ Emily E. Katt
----------------------------------
Emily E. Katt, Vice President
6
<PAGE> 7
EXHIBIT T-1 (6)
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939 and in
connection with the proposed issuance of Notes of JDN Realty Corporation, First
Union National Bank, as the Trustee herein named, hereby consents that reports
of examinations of said Trustee by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
FIRST UNION NATIONAL BANK
BY:/s/ R. Douglas Milner
-----------------------------------------
Dated: July 30, 1997 R. Douglas Milner, Vice President
7
<PAGE> 1
EXHIBIT 25.2
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
----------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) X
----------------------
FIRST UNION NATIONAL BANK
(Exact name of Trustee as specified in its charter)
<TABLE>
<S> <C> <C>
999 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309 58-1079889
(Address of principal executive office) (Zip Code) (I.R.S. Employer Identification No.)
</TABLE>
Emily E. Katt
First Union National Bank
1100 First Union Plaza
999 Peachtree Street N.E.
Atlanta, Georgia 30309
(404) 827-7347
(Name, Address and Telephone Number of Agent for Service)
----------------------
JDN REALTY CORPORATION
(Exact name of obligor as specified in its charter)
MARYLAND
(State or other jurisdiction of incorporation or organization)
58-1468053
(IRS employer identification no.)
3340 PEACHTEE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
(Name, address, including zip code, and telephone number, including area
code, of principal executive offices)
J. DONALD NICHOLS
JDN REALTY CORPORATION
3340 PEACHTEE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
-----------------------
$85,000,000 NOTES DUE 2007
(Title of the indenture securites)
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1. General information.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Atlanta, Georgia.
Federal Deposit Insurance Corporation, Washington, D.C.
Securities and Exchange Commission, Division of Market
Regulation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
(See Note 2 on Page 5)
3. Voting Securities of the Trustee.
The following information is furnished as to each class of
voting securities of the Trustee:
As of May 31, 1997
- ----------------------------------------------------------------------------
Column A Column B
- ----------------------------------------------------------------------------
Title of Class Amount Outstanding
Common 280,571,082 shares
- ----------------------------------------------------------------------------
Common Stock, par value $3.33 1/3 a share
4. Trusteeships under other indentures. None.
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
Neither the Trustee nor any of the directors or executive
officers of the Trustee is a director, officer, partner, employee,
appointee or representative of the obligor or of any underwriter for
the obligor.
(See Note 2 on Page 5)
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<PAGE> 3
6. Voting securities of the Trustee owned by the obligor or its officials.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the Trustee.
(See Notes 1 and 2 on Page 5)
7. Voting securities of the Trustee owned by underwriters or their
officials.
Voting securities of the Trustee owned by any underwriter and
its directors, partners, and executive officers, taken as a group, do
not exceed one percent of the outstanding voting securities of the
Trustee.
(See Notes 1 and 2 on Page 5)
8. Securities of the obligor owned or held by the Trustee.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in default
does not exceed one percent of the outstanding securities of the
obligor.
(See Note 2 on Page 5)
9. Securities of underwriters owned or held by the Trustee.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of an underwriter
for the obligor.
(See Note 2 on Page 5)
10. Ownership or holdings by the Trustee of voting securities of certain
affiliates or security holders of the obligor.
The Trustee does not own beneficially or hold as collateral
security for obligations in default voting securities of a person, who,
to the knowledge of the Trustee (1) holds 10% or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor.
(See Note 2 on Page 5)
11. Ownership or holdings by the Trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor.
The Trustee does not own beneficially or hold as collateral
security for obligations in default any securities of a person who, to
the knowledge of Trustee, owns 50 percent or more of the voting
securities of the obligor.
(See Note 2 on Page 5)
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12. Indebtedness of the obligor to the Trustee.
Not applicable.
13. Defaults by the obligor.
Not applicable.
14. Affiliations with the underwriters.
No underwriter is an affiliate of the Trustee.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee as now in effect. (See
Exhibit 1 of the Form T-1 filed in connection with Registration
Statement No. 333-31863, which is incorporated herein by reference)
(2) Certificate of Authority of the Trustee to commence business.
(See Exhibit 2 of the Form T-1 filed in connection with
Registration Statement No. 333-31863, which is incorporated herein
by reference)
(3) Authorization of the Trustee to exercise corporate trust powers.
Incorporated in Exhibit (4).
(4) By-Laws of the Trustee, as amended, to date. (See Exhibit 4 of the
Form T-1 filed in connection with Registration Statement No.
333-31863, which is incorporated herein by reference)
(5) Not applicable.
(6) Consent by the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939. Included on Page 6 of this Form T-1
Statement.
(7) Most recent report of condition of the Trustee. (See Exhibit 7 of
the Form T-1 filed in connection with Registration Statement No.
333-31863, which is incorporated herein by reference)
(8) Not applicable.
(9) Not applicable.
4
<PAGE> 5
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NOTES
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1. Since the Trustee is a member of First Union Corporation, a bank
holding company, all of the voting securities of the Trustee are held by First
Union Corporation. The securities of First Union National Bank are described in
Item 3.
2. Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base responsive answers to Items 2, 5, 6,
7, 8, 9, 10 and 11, the answers to said Items are based on incomplete
information. Items 2, 5, 6, 7, 8, 9, 10 and 11 may, however be considered as
correct unless amended by an amendment to this Form T-1.
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<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Atlanta, and State of Georgia on the 30th day of July 1997.
FIRST UNION NATIONAL BANK
(Trustee)
BY: /s/ Emily E. Katt
----------------------------------------
Emily E. Katt, Vice President
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EXHIBIT T-1 (6)
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939 and in
connection with the proposed issuance of Notes of JDN Realty Corporation, First
Union National Bank, as the Trustee herein named, hereby consents that reports
of examinations of said Trustee by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
FIRST UNION NATIONAL BANK
BY: /s/ R. Douglas Milner
--------------------------------------
R. Douglas Milner, Vice President
Dated: July 30, 1997
7
