<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
For the transition period from __________________ to __________________
Commission file number: 1-13130 (Liberty Property Trust)
1-13132 (Liberty Property Limited Partnership)
LIBERTY PROPERTY TRUST
LIBERTY PROPERTY LIMITED PARTNERSHIP
(Exact name of registrants as specified in their governing documents)
MARYLAND (Liberty Property Trust) 23-7768996
PENNSYLVANIA (Liberty Property Limited Partnership) 23-2766549
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification Number)
65 Valley Stream Parkway, Suite 100, Malvern, Pennsylvania 19355
(Address of Principal Executive Offices) (Zip Code)
Registrants' Telephone Number, Including Area Code (610)648-1700
Indicate by check mark whether the registrants (1) have filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve (12) months (or for such shorter period that
the registrants were required to file such reports) and (2) have been subject to
such filing requirements for the past ninety (90) days. YES X NO
On October 23, 1997, 42,588,615 Common Shares of Beneficial Interest, par value
$.001 per share, of Liberty Property Trust were outstanding.
1
<PAGE> 2
LIBERTY PROPERTY TRUST/LIBERTY PROPERTY LIMITED PARTNERSHIP
FORM 10-Q FOR THE PERIOD ENDED SEPTEMBER 30, 1997
INDEX
- -----
<TABLE>
<CAPTION>
Part I. Financial Information
- ------------------------------
Item 1. Financial Statements (unaudited) Page
----
<S> <C>
Consolidated balance sheet of Liberty Property
Trust at September 30, 1997 and December 31, 1996. 4
Consolidated statement of operations of Liberty
Property Trust for the three months ended September
30, 1997 and September 30, 1996. 5
Consolidated statement of operations of Liberty
Property Trust for the nine months ended September 30,
1997 and September 30, 1996. 6
Consolidated statement of cash flows of Liberty
Property Trust for the nine months ended September 30,
1997 and September 30, 1996. 7
Notes to consolidated financial statements for
Liberty Property Trust. 8-9
Consolidated balance sheet of Liberty Property
Limited Partnership at September 30, 1997 and
December 31, 1996. 10
Consolidated statement of operations of Liberty
Property Limited Partnership for the three months
ended September 30, 1997 and September 30, 1996. 11
Consolidated statement of operations of Liberty
Property Limited Partnership for the nine months
ended September 30, 1997 and September 30, 1996. 12
Consolidated statement of cash flows of Liberty
Property Limited Partnership for the nine months
ended September 30, 1997 and September 30, 1996. 13
Notes to consolidated financial statements for
Liberty Property Limited Partnership. 14-15
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations. 15-20
Part II. Other Information 20-21
- --------------------------
Signatures 22
</TABLE>
2
<PAGE> 3
- --------------------------
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward-looking statements. Certain information included in this Quarterly
Report on Form 10-Q contain statements that are or will be forward-looking, such
as statements relating to acquisitions and other business development
activities, future capital expenditures, financing sources and availability, and
the effects of regulation (including environmental regulation) and competition.
Such forward-looking information involves important risks and uncertainties that
could significantly affect anticipated results in the future and, accordingly,
such results may differ from those expressed in any forward-looking statements
made by, or on behalf of, the Company. These risks and uncertainties include,
but are not limited to, uncertainties affecting real estate businesses generally
(such as entry into new leases, renewals of leases and dependence on tenants'
business operations), risks relating to acquisition, construction and
development activities, possible environmental liabilities, risks relating to
leverage and debt service (including availability of financing terms acceptable
to the Company and sensitivity of the Company's operations to fluctuations in
interest rates), the potential for the use of borrowings to make distributions
necessary to qualify as a REIT, dependence on the primary markets in which the
Company's properties are located, the existence of complex regulations relating
to status as a REIT and the adverse consequences of the failure to qualify as a
REIT and the potential adverse impact of market interest rates on the market
price for the Company's securities.
3
<PAGE> 4
CONSOLIDATED BALANCE SHEET OF LIBERTY PROPERTY TRUST
(IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997 DECEMBER 31, 1996
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Real estate:
Land and land improvements $ 209,510 $ 140,196
Buildings and improvements 1,355,614 908,835
Less accumulated depreciation (139,847) (119,151)
---------- ----------
Operating real estate 1,425,277 929,880
Development in progress 143,433 85,628
Land held for development 56,839 44,054
---------- ----------
Net real estate 1,625,549 l,059,562
Cash and cash equivalents 24,097 19,612
Accounts receivable 14,212 8,707
Deferred financing and leasing costs, net of
accumulated amortization (1997, $38,411;
1996, $30,985) 29,439 27,013
Prepaid expenses and other assets 41,902 37,718
---------- ----------
Total assets $1,735,199 $1,152,612
========== ==========
LIABILITIES
Mortgage loans $ 391,055 $ 240,803
Unsecured notes 200,000 -
Lines of credit 146,000 266,692
Subordinated debentures 114,820 171,214
Accounts payable 12,588 6,294
Accrued interest 4,394 7,411
Dividend payable 21,271 14,248
Other liabilities 48,380 28,923
---------- ----------
Total liabilities 938,508 735,585
Minority interest 66,430 41,495
SHAREHOLDERS' EQUITY
Series A preferred shares ($.001 par value); 5,000
shares authorized; 5,000 shares issued and
outstanding as of September 30, 1997 125,000 -
Common shares of beneficial interest, $.001 par value,
200,000 shares authorized, 42,522 and 31,400
shares issued and outstanding as of September 30,
1997 and December 31, 1996, respectively 43 31
Additional paid-in capital 606,309 370,813
Unearned compensation (1,091) (1,408)
Retained earnings - 6,096
---------- ----------
Total shareholders' equity 730,261 375,532
---------- ----------
Total liabilities and shareholders' equity $1,735,199 $1,152,612
========== ==========
</TABLE>
See accompanying notes.
4
<PAGE> 5
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY TRUST
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE THREE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
REVENUE
Rental $ 45,241 $28,921
Operating expense reimbursement 15,331 9,336
Management fees 205 324
Interest and other 1,654 958
-------- --------
Total revenue 62,431 39,539
-------- --------
OPERATING EXPENSES
Rental property expenses 11,934 7,523
Real estate taxes 4,815 3,004
General and administrative 2,820 2,094
Depreciation and amortization 11,499 7,261
-------- --------
Total operating expenses 31,068 19,882
-------- --------
Operating income 31,363 19,657
Premium on debenture conversion 98 637
Write off of deferred financing costs 353 -
Interest expense 13,341 9,707
-------- --------
Income before minority interest 17,571 9,313
Minority interest 1,590 943
-------- --------
Net income $ 15,981 $ 8,370
======== ========
Preferred dividend 1,497 -
-------- --------
Income available to common shareholders $ 14,484 $ 8,370
======== ========
Net income per common share - primary $ 0.35 $ 0.28
======== ========
Dividends declared per common share $ 0.42 $ 0.41
======== ========
Weighted average number of common shares outstanding 41,661 29,994
======== ========
</TABLE>
See accompanying notes.
5
<PAGE> 6
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY TRUST
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE NINE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
REVENUE
Rental $ 119,223 $ 82,019
Operating expense reimbursement 38,121 26,463
Management fees 516 1,190
Interest and other 2,244 3,080
--------- --------
Total revenue 160,104 112,752
--------- --------
OPERATING EXPENSES
Rental property expenses 29,849 22,158
Real estate taxes 12,297 8,176
General and administrative 7,602 5,681
Depreciation and amortization 28,787 20,435
--------- --------
Total operating expenses 78,535 56,450
--------- --------
Operating income 81,569 56,302
Premium on debenture conversion 98 1,027
Write off of deferred financing costs 2,919 -
Interest expense 37,252 28,274
--------- --------
Income before minority interest 41,300 27,001
Minority interest 3,815 2,833
--------- --------
Net income $ 37,485 $ 24,168
========= ========
Preferred dividend 1,497 -
--------- --------
Income available to common shareholders $ 35,988 $ 24,168
========= ========
Net income per common share - primary $ 0.93 $ 0.83
========= ========
Dividends declared per common share $ 1.24 $ 1.21
========= ========
Weighted average number of common shares outstanding 38,551 29,176
========= ========
</TABLE>
See accompanying notes.
6
<PAGE> 7
CONSOLIDATED STATEMENT OF CASH FLOWS OF LIBERTY PROPERTY TRUST
(UNAUDITED AND IN THOUSANDS)
<TABLE>
<CAPTION>
NINE NINE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 37,485 $ 24,168
Adjustments to reconcile net income to net cash
provided by operating activities
Depreciation and amortization 28,787 20,435
Amortization of deferred financing costs 6,353 3,428
Minority interest in net income 3,815 2,833
Loss (gain) on sale 543 (577)
Noncash compensation 317 477
Changes in operating assets and liabilities:
Accounts receivable (5,505) (509)
Prepaid expense and other assets (4,455) (11,469)
Accounts payable 6,294 995
Accrued interest on existing debt (3,017) (5,432)
Other liabilities 20,143 6,947
----------- ---------
Net cash provided by operating activities 90,760 41,296
----------- ---------
INVESTING ACTIVITIES
Investment in properties (372,900) (55,529)
Investment in development in progress (144,295) (73,862)
Investment in land held for development (12,785) (8,799)
Increase in deferred leasing costs (6,096) (4,100)
----------- ---------
Net cash used in investing activities (536,076) (142,290)
----------- ---------
FINANCING ACTIVITIES
Net proceeds from sale of common stock 187,592 -
Proceeds from issuance of preferred shares 125,000 -
Proceeds from issuance of unsecured notes 200,000 -
Proceeds from mortgage loans 124,815 39,650
Repayments of mortgage loans (7,855) (8,544)
Proceeds from lines of credit 600,017 143,374
Repayments on lines of credit (720,709) (38,650)
Increase in deposits on pending acquisitions (146) 2,252
Increase in deferred financing costs (7,807) (1,169)
Dividends (46,705) (34,567)
Distributions to partners (4,401) (4,008)
----------- ---------
Net cash provided by financing activities 449,801 98,338
Increase (decrease) in cash and cash equivalents 4,485 (2,656)
Cash and cash equivalents at beginning of period 19,612 10,629
----------- ---------
Cash and cash equivalents at end of period $ 24,097 $ 7,973
=========== =========
SUPPLEMENTAL DISCLOSURE OF NONCASH TRANSACTIONS
Write-off of fully depreciated property and
deferred costs $ 6,232 $ 638
Acquisition of properties (89,494) -
Disposition of properties 27,410 -
Assumption of mortgage loans 33,292 -
Issuance of operating partnership units 28,792 -
Noncash compensation 686 353
Conversion of subordinated debentures 56,394 46,275
=========== =========
</TABLE>
See accompanying notes.
7
<PAGE> 8
LIBERTY PROPERTY TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
SEPTEMBER 30, 1997
NOTE 1 - BASIS OF PRESENTATION
- ------------------------------
The accompanying unaudited consolidated financial statements of Liberty Property
Trust (the "Trust") and its subsidiaries, including Liberty Property Limited
Partnership (the "Operating Partnership") (the Trust, Operating Partnership and
their respective subsidiaries referred to collectively as the "Company"), have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements and should be read in conjunction with the consolidated
financial statements and notes thereto included in the Annual Report on Form
10-K of the Trust and the Operating Partnership for the year ended December 31,
1996. In the opinion of management, all adjustments (consisting solely of normal
recurring adjustments) necessary for a fair presentation of the financial
statements for these interim periods have been included. The results of interim
periods are not necessarily indicative of the results to be obtained for a full
fiscal year. Certain amounts from prior periods have been restated to conform to
current period presentation.
In February, 1997, the Financial Accounting Standards Board issued Statement No.
128, Earnings per Share, which is required to be adopted on December 31, 1997.
At that time, the Company will be required to change the method currently used
to compute earnings per share and to restate all prior periods. Under the new
requirements for calculating primary earnings per share, the dilutive effect of
stock options will be excluded. The impact of Statement 128 on the calculation
of primary and fully diluted earnings per share for the quarter and the nine
months ended September 30, 1997 and 1996 is not expected to be material.
Note 2 - Organization
- ---------------------
The Trust, a self-administered and self-managed real estate investment trust (a
"REIT"), was formed in the State of Maryland on March 28, 1994 and commenced
operations on June 23, 1994 upon completion of its initial public offering (the
"Share Offering"). The Trust conducts all of its operations through the
Operating Partnership. At September 30, 1997, the Trust owned an 90.68% interest
in the Operating Partnership as its sole general partner and a .02% interest as
a limited partner. Concurrent with the Share Offering, the Operating Partnership
completed a public offering of Exchangeable Subordinated Debentures (the
"Debentures") due 2001. The Debentures are guaranteed by the Trust. The
Debentures are exchangeable, at the option of the holder thereof, at
8
<PAGE> 9
any time prior to maturity, into Common Shares at a rate of one share for each
$20 outstanding principal amount of Debentures, subject to certain adjustments.
The Company completed a follow-on offering (the "Follow-on Offering") on March
24, 1997 of 7,500,000 Common Shares. On April 1, 1997, the overallotment option
was exercised, resulting in the issuance of an additional 750,000 Common Shares.
On August 11, 1997, the Company completed a public offering of 5,000,000 shares
of Series A Cumulative Redeemable Preferred Shares of Beneficial Interest (the
"Preferred Offering"). The Series A Preferred Shares are payable at the rate of
8.8% per annum of the $25 liquidation preference. The preferred shares are
redeemable at the option of the Company at any time on or after July 30, 2002 at
$25 per share.
On August 14, 1997, the Operating Partnership completed a $200 million offering
of unsecured notes, (the "Senior Note Offering"). The unsecured notes are
comprised of $100 million principal amount of 7.10% Senior Notes due August 15,
2004 and $100 million principal amount of 7.25% Senior Notes due August 15,
2007.
9
<PAGE> 10
CONSOLIDATED BALANCE SHEET OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997 DECEMBER 31, 1996
------------------ -----------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Real estate:
Land and land improvements $ 209,510 $ 140,196
Buildings and improvements 1,355,614 908,835
Less accumulated depreciation (139,847) (119,151)
---------- ----------
Operating real estate 1,425,277 929,880
Development in progress 143,433 85,628
Land held for development 56,839 44,054
---------- ----------
Net real estate 1,625,549 l,059,562
Cash and cash equivalents 24,097 19,612
Accounts receivable 14,212 8,707
Deferred financing and leasing costs, net of
accumulated amortization (1997, $38,411;
1996, $30,985) 29,439 27,013
Prepaid expenses and other assets 41,902 37,718
---------- ----------
Total assets $1,735,199 $1,152,612
========== ==========
LIABILITIES
Mortgage loans $ 391,055 $ 240,803
Unsecured notes 200,000 -
Lines of credit 146,000 266,692
Subordinated debentures 114,820 171,214
Accounts payable 12,588 6,294
Accrued interest 4,394 7,411
Dividend payable 21,271 14,248
Other liabilities 48,380 28,923
---------- ----------
Total liabilities 938,508 735,585
OWNERS' EQUITY
General partner's equity 730,261 375,532
Limited partners' equity 66,430 41,495
---------- ----------
Total owners' equity 796,691 417,027
---------- ----------
Total liabilities and owners' equity $1,735,199 $1,152,612
========== ==========
</TABLE>
See accompanying notes.
10
<PAGE> 11
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(UNAUDITED AND IN THOUSANDS)
<TABLE>
<CAPTION>
THREE THREE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
REVENUE
Rental $ 45,241 $ 28,921
Operating expense reimbursement 15,331 9,336
Management fees 205 324
Interest and other 1,654 958
-------- --------
Total revenue 62,431 39,539
-------- --------
OPERATING EXPENSES
Rental property expenses 11,934 7,523
Real estate taxes 4,815 3,004
General and administrative 2,820 2,094
Depreciation and amortization 11,499 7,261
-------- --------
Total operating expenses 31,068 19,882
-------- --------
Operating income 31,363 19,657
Premium on debenture conversion 98 637
Write off of deferred financing costs 353 -
Interest expense 13,341 9,707
-------- --------
Net income $ 17,571 $ 9,313
======== ========
Net income allocated to general partner $ 15,981 $ 8,370
Net income allocated to limited partners 1,590 943
======== ========
</TABLE>
See accompanying notes.
11
<PAGE> 12
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(UNAUDITED AND IN THOUSANDS)
<TABLE>
<CAPTION>
NINE NINE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
REVENUE
Rental $ 119,223 $ 82,019
Operating expense reimbursement 38,121 26,463
Management fees 516 1,190
Interest and other 2,244 3,080
-------- --------
Total revenue 160,104 112,752
-------- --------
OPERATING EXPENSES
Rental property expenses 29,849 22,158
Real estate taxes 12,297 8,176
General and administrative 7,602 5,681
Depreciation and amortization 28,787 20,435
-------- --------
Total operating expenses 78,535 56,450
-------- --------
Operating income 81,569 56,302
Premium on debenture conversion 98 1,027
Write off of deferred financing costs 2,919 -
Interest expense 37,252 28,274
-------- --------
Net income $ 41,300 $ 27,001
======== ========
Net income allocated to general partner $ 37,485 $ 24,168
Net income allocated to limited partners 3,815 2,833
======== ========
</TABLE>
12
<PAGE> 13
CONSOLIDATED STATEMENT OF CASH FLOWS OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(UNAUDITED AND IN THOUSANDS)
<TABLE>
<CAPTION>
NINE NINE
MONTHS ENDED MONTHS ENDED
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 41,300 $ 27,001
Adjustments to reconcile net income to net cash
provided by operating activities
Depreciation and amortization 28,787 20,435
Amortization of deferred financing costs 6,353 3,428
Loss (gain) on sale 543 (577)
Noncash compensation 317 477
Changes in operating assets and liabilities:
Accounts receivable (5,505) (509)
Prepaid expense and other assets (4,455) (11,469)
Accounts payable 6,294 995
Accrued interest on existing debt (3,017) (5,432)
Other liabilities 20,143 6,947
--------- ---------
Net cash provided by operating activities 90,760 41,296
--------- ---------
INVESTING ACTIVITIES
Investment in properties (372,900) (55,529)
Investment in development in progress (144,295) (73,862)
Investment in land held for development (12,785) (8,799)
Increase in deferred leasing costs (6,096) (4,100)
--------- ---------
Net cash used in investing activities (536,076) (142,290)
--------- ---------
FINANCING ACTIVITIES
Proceeds from issuance of unsecured notes 200,000 -
Proceeds from mortgage loans 124,815 39,650
Repayments of mortgage loans (7,855) (8,544)
Proceeds from lines of credit 600,017 143,374
Repayments on lines of credit (720,709) (38,650)
Increase in deposits on pending acquisitions (146) 2,252
Increase in deferred financing costs (7,807) (1,169)
Capital contributions 312,592 -
Distributions to partners (51,106) (38,575)
--------- ---------
Net cash provided by financing activities 449,801 98,338
Increase (decrease) in cash and cash equivalents 4,485 (2,656)
Cash and cash equivalents at beginning of period 19,612 10,629
--------- ---------
Cash and cash equivalents at end of period $ 24,097 $ 7,973
========== =========
SUPPLEMENTAL DISCLOSURE OF NONCASH TRANSACTIONS
Write-off of fully depreciated property and
deferred costs $ 6,232 $ 638
Acquisition of properties (89,494) -
Disposition of properties 27,410 -
Assumption of mortgage loans 33,292 -
Issuance of operating partnership units 28,792 -
Noncash compensation 686 353
Conversion of subordinated debentures 56,394 46,275
========= =========
</TABLE>
See accompanying notes.
13
<PAGE> 14
LIBERTY PROPERTY LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
SEPTEMBER 30, 1997
NOTE 1 - BASIS OF PRESENTATION
- ------------------------------
The accompanying unaudited consolidated financial statements of Liberty Property
Limited Partnership (the "Operating Partnership") and its direct and indirect
subsidiaries have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions to Form
10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements and should be read in conjunction
with the consolidated financial statements and notes thereto included in the
Annual Report on Form 10-K of the Trust and the Operating Partnership for the
year ended December 31, 1996. In the opinion of management, all adjustments
(consisting solely of normal recurring adjustments) necessary for a fair
presentation of the financial statements for these interim periods have been
included. The results of interim periods are not necessarily indicative of the
results to be obtained for a full fiscal year. Certain amounts from prior
periods have been restated to conform to current period presentation.
NOTE 2 - ORGANIZATION
- ---------------------
Liberty Property Trust (the "Trust", and together with the Operating Partnership
referred to as the "Company"), a self-administered and self-managed real estate
investment trust (a "REIT"), was formed in the State of Maryland on March 28,
1994 and commenced operations on June 23, 1994 upon completion of its initial
public offering (the "Share Offering"). The Trust conducts all of its operations
through the Operating Partnership. At September 30, 1997, the Trust owned an a
90.68% interest in the Operating Partnership as its sole general partner and a
.02% interest as a limited partner. Concurrent with the Share Offering, the
Operating Partnership completed a public offering of Exchangeable Subordinated
Debentures (the "Debentures") due 2001. The Debentures are guaranteed by the
Trust. The Debentures are exchangeable, at the option of the holder thereof, at
any time prior to maturity, into Common Shares at a rate of one share for each
$20 outstanding principal amount of Debentures, subject to certain adjustments.
The Company completed a follow-on offering (the "Follow-on Offering") on March
24, 1997 of 7,500,000 Common Shares. On April 1, 1997, the overallotment option
was exercised, resulting in the issuance of an additional 750,000 Common Shares.
14
<PAGE> 15
On August 11, 1997, the Company completed a public offering of 5,000,000 shares
of Series A Cumulative Redeemable Preferred Shares of Beneficial Interest (the
"Preferred Offering"). The Series A Preferred Shares are payable at the rate of
8.8% per annum of the $25 liquidation preference. The preferred shares are
redeemable at the option of the Company at any time on or after July 30, 2002 at
$25 per share.
On August 14, 1997, the Operating Partnership completed a $200 million offering
of unsecured notes, (the "Senior Note Offering"). The unsecured notes are
comprised of $100 million principal amount of 7.10% Senior Notes due August 15,
2004 and $100 million principal amount of 7.25% Senior Notes due August 15,
2007.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
- ------------------------------------------------------------------------
The following discussion compares the activities of the Company for the three
and nine months ended September 30, 1997 (unaudited) with the activities of the
Company for the three and nine months ended September 30, 1996 (unaudited). As
used herein, the term "Company" includes the Trust, the Operating Partnership
and their subsidiaries.
This information should be read in conjunction with the accompanying
consolidated financial statements and notes included elsewhere in this report.
RESULTS OF OPERATIONS
- ---------------------
For the three and nine months ended September 30, 1997 compared to the three and
nine months ended September 30, 1996.
- -----------------------------------------------------------------------
Rental revenues increased from $28.9 million to $45.2 million, or by 56% for the
three months ended September 30, 1996 to 1997 and increased from $82.0 million
to $119.2 million, or by 45% for the nine months ended September 30, 1996 to
1997. These increases are primarily due to the increase in the number of
properties in operation ("Operating Properties") during the respective periods.
As of September 30, 1996, the Company had 242 Operating Properties and as of
September 30, 1997, the Company had 380 Operating Properties. From January 1,
1996 through June 30, 1996 and from July 1, 1996 through September 30, 1996, the
Company acquired or completed the development on 22 properties and 12
properties, respectively, for a Total Investment of approximately $80.1 million
and $36.7 million, respectively. From January 1, 1997 through June 30, 1997 and
July 1, 1997 through September 30, 1997, the Company acquired or completed the
development on 72 properties and 56 properties, respectively, for a Total
Investment of approximately $418.4 million and $137.5 million, respectively. The
"Total Investment" for a property is defined as the property's purchase price
plus closing costs and management's estimate, as determined at the time of
acquisition, of the cost of necessary building improvements in the case of
acquisitions, or land costs and land and building improvement costs in the case
of
15
<PAGE> 16
development projects, and where appropriate, other development costs and
carrying costs required to reach rent commencement.
Operating expense reimbursement increased from $9.3 million to $15.3 million for
the three months ended September 30, 1996 to 1997 and from $26.5 million to
$38.1 million for the nine months ended September 30, 1996 to 1997. These
increases are a result of the reimbursement from tenants for increases in rental
property expenses and real estate taxes. The operating expense recovery
percentage (the ratio of operating expense reimbursement to rental property
expenses and real estate taxes) increased from 88.7% for the three months ended
September 30, 1996 to 91.5% for the three months ended September 30, 1997 and
from 87.2% for the nine months ended September 30, 1996 to 90.4% for the nine
months ended September 30, 1997, due to the increase in occupancy.
Rental property and real estate tax expenses increased from $10.5 million to
$16.7 million for the three months ended September 30, 1996 to 1997 and from
$30.3 million to $42.1 million for the nine months ended September 30, 1996 to
1997. These increases are due to the increase in the number of properties owned
during the respective periods, partly offset by a reduction in snow removal and
other seasonal operating costs during the mild 1997 winter compared to the
severe 1996 winter.
Property level operating income for the "Same Store" properties (properties
owned as of January 1, 1996) increased from $70.7 million to $74.2 million for
the nine months ended September 30, 1996 to 1997, an increase of 5.1%. This
increase is due principally to increases in the rental rates for the properties
and increases in occupancy.
Set forth below is a schedule comparing the property level operating income for
the Same Store properties for the nine month periods ended September 30, 1997
and 1996.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
---------------------------------------
(IN THOUSANDS)
---------------------------------------
SEPTEMBER 30, 1997 SEPTEMBER 30, 1996
------------------ ------------------
<S> <C> <C>
Rental revenue $77,018 $73,771
Operating expense reimbursement 22,448 22,693
------- -------
99,466 96,464
Rental property expenses 18,196 18,749
Real estate taxes 7,039 7,054
------- -------
Property level operating income $74,231 $70,661
======= =======
</TABLE>
General and administrative expenses increased from $2.1 million for the three
months ended September 30, 1996 to $2.8 million for the three months ended
September 30, 1997, and from $5.7 million for the nine
16
<PAGE> 17
months ended September 30, 1996 to $7.6 million for the nine months ended
September 30, 1997, due to the increase in personnel and other related overhead
costs necessitated by the increase in the number of properties owned during the
respective periods.
Depreciation and amortization expense increased from $7.3 million for the three
months ended September 30, 1996 to $11.5 million for the three months ended
September 30, 1997 and from $20.4 million for the nine months ended September
30, 1996 to $28.8 million for the nine months ended September 30, 1997. This
increase is due to an increase in the number of properties owned during the
respective periods.
Interest expense increased from $9.7 million for the three months ended
September 30, 1996 to $13.3 million for the three months ended September 30,
1997 and from $28.3 million for the nine months ended September 30, 1996 to
$37.3 million for the nine months ended September 30, 1997. This increase is due
to an increase in the average debt outstanding for the third quarter of 1996
compared to the third quarter of 1997, which equalled $549.3 million and $841.4
million, respectively, and for the nine months ended September 30, 1996 to
September 30, 1997, which equalled $518.7 million and $765.3 million,
respectively, partially offset by reduced interest rates. Further, for the three
and nine months ended September 30, 1997, approximately $353,000 and $2.9
million, respectively, in deferred financing costs were written off as a result
of the termination of the secured Lines of Credit.
As a result of the foregoing, the Company's operating income increased from
$19.7 million for the three months ended September 30, 1996 to $31.4 million for
the three months ended September 30, 1997 and increased from $56.3 million for
the nine months ended September 30, 1996 to $81.6 million for the nine months
ended September 30, 1997. In addition, income before minority interest for the
three months increased from $9.3 million for the three months ended September
30, 1996 to $17.6 million for the three months ended September 30, 1997 and from
$27.0 million for the nine months ended September 30, 1996 to $41.3 million for
the nine months ended September 30, 1997.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1997, the Company had cash and cash equivalents of $24.1
million.
Net cash flow provided by operating activities increased from $41.3 million for
the nine months ended September 30, 1996, to $90.8 million for the nine months
ended September 30, 1997. This $49.5 million increase was primarily due to the
cash provided by the additional Operating Properties in service during the
latter period.
Net cash used in investing activities increased from $142.3 million for the nine
months ended September 30, 1996, to $536.1 million for the nine months ended
September 30, 1997. This increase primarily resulted from increased acquisition
activity in the first nine months of 1997, including the acquisition of a
portfolio of 16 properties in the Minneapolis, Minnesota marketplace, a
portfolio of 14 properties in the
17
<PAGE> 18
South Carolina marketplace, and two portfolios of 13 and 28 properties,
respectively, in the Detroit, Michigan marketplace. This increase is also due to
an increased level of investment in development and land.
Net cash provided by financing activities increased from $98.3 million for the
nine months ended September 30, 1996, to $449.8 million for the nine months
ended September 30, 1997. This increase was primarily attributable to the
Follow-On Offering and the exercise of the overallotment option which was
completed on March 24, 1997 and April 1, 1997, respectively, which resulted in
the issuance of 8,250,000 Common Shares, the Preferred Offering which was
completed on August 11, 1997 which resulted in the issuance of 5,000,000
preferred shares, and the Senior Notes Offering which was completed on August
14, 1997 which resulted in the issuance of $200 million of unsecured notes. The
net proceeds of these offerings were approximately $191.7 million, $120.8
million and $198.0 million respectively.
The Company believes that its undistributed cash flow from operations is
adequate to fund its short-term liquidity requirements.
The Company has funded its long-term liquidity requirements such as property
acquisition and development activities primarily through secured line of credit
facilities (the "Lines of Credit"). During the second quarter of 1997, the
Company replaced these secured facilities with a $325.0 million unsecured line
of credit (the "Line of Credit").
The interest rate on borrowings under the Line of Credit fluctuates based upon
the Company's leverage levels or ratings from Moody's Investors Service
("Moody's") and Standard & Poor's ("S&P"). On June 23, 1997, Moody's raised its
prospective senior debt rating of the Company to Baa3 from Ba2 and on July 22,
1997, S&P assigned a BBB- prospective senior debt rating to the Company. At
these ratings, the interest rate for borrowings under the Line of Credit is 110
basis points over LIBOR.
Periodically, the Company pays down borrowings on the Line of Credit with funds
from long term capital sources. In the third quarter of 1997, the Company used
approximately $268.0 million of the proceeds from the Preferred Offering and
Senior Notes Offering to paydown the Line of Credit. The Company has entered
into a treasury rate lock agreement, with a notional amount of $100 million, to
hedge against possible fluctuations in interest rates in anticipation of a debt
issuance in the fourth quarter of 1997 for a 10 to 15 year term.
As of September 30, 1997, $391.1 million in mortgage loans were outstanding with
maturities ranging from 1998 to 2013. The interest rates on $352.2 million of
mortgage loans are fixed and range from 6% to 9%. Interest rates on $38.8
million of mortgage loans float with LIBOR or prime, of which $19.3 million is
subject to certain caps. The weighted average interest rate for the mortgage
loans is 7.7%, and the weighted average life is 7.8 years.
General
18
<PAGE> 19
The Company expects to incur variable rate debt, including borrowings under the
Credit Facility, from time to time. The Company believes that its existing
sources of capital will provide sufficient funds to finance its continued
acquisition and development activities. In this regard, the Company continues to
evaluate its long term capital sources which generally include the availability
of debt financing and access to equity.
In July 1995, the Company filed a shelf registration with the Securities and
Exchange Commission that enabled the Company to offer up to an aggregate of
$350.0 million of securities, including common stock, preferred stock and debt
(the "Initial Shelf Registration"). On November 27, 1995, the Company completed
a follow-on public offering of 7,200,000 common shares resulting in proceeds of
$140.4 million.
On October 15, 1996, the Company filed a Registration Statement of 1,000,000
shares to be issued through a Dividend Reinvestment and Share Purchase Plan.
On February 21, 1997, the Company filed a shelf registration with the Securities
and Exchange Commission that enables the Company to offer up to an aggregate of
$850.0 million of securities, including common stock, preferred stock and debt
(the "Second Shelf Registration"). On March 24, 1997, the Company completed the
Follow-on Offering which resulted in the issuance of an additional 7,500,000
Common Shares, and on April 1, 1997, the overallotment option was exercised,
resulting in the issuance of an additional 750,000 Common Shares. The issuance
of these Common Shares resulted in net proceeds of $191.7 million. Collectively,
the Initial Shelf Registration and the Second Shelf Registration are referred to
as the "Shelf Registration".
On August 11, 1997, the Company completed the Preferred Offering which resulted
in the issuance of 5,000,000 Shares of Series A Cumulative Redeemable Preferred
Shares. The issuance of these Preferred Shares resulted in net proceeds of
$120.8 million. The aggregate net proceeds of the Preferred Offering were
contributed upon receipt to the Operating Partnership in exchange for preferred
partnership interests in the Operating Partnership, the economic terms of which
are substantially identical to the Preferred Shares.
On August 14, 1997, the Company completed the Senior Note Offering which
resulted in the issuance of $200.0 million of unsecured notes. The issuance of
these Senior Notes resulted in the net proceeds of $198.0 million.
Presently, the Shelf Registration provides Liberty Property Trust and Liberty
Property Limited Partnership with the ability to offer up to $354.4 million of
securities and $200.0 million of securities, respectively.
Calculation of Funds from Operations
Management considers Funds from Operations an appropriate measure of the
performance of an equity REIT. Funds from Operations is defined by NAREIT as net
income or loss (computed in accordance with generally accepted accounting
principles), excluding gains or losses from debt restructuring and sales of
property plus real estate related depreciation and amortization excluding the
amortization and excluding
19
<PAGE> 20
significant non-recurring events that materially distort the comparative
measurement of the Company's performance over time. Funds from Operations should
not be considered as an alternative to net income or as an alternative to cash
flow as a measure of liquidity. Funds from Operations for the three and nine
months ended September 30, 1997 and 1996 are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
(IN THOUSANDS) (IN THOUSANDS)
------------------- -------------------
SEPT. 30, SEPT. 30, SEPT. 30, SEPT. 30,
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Income available to common shareholders $ 14,484 $ 8,370 $ 35,988 $ 24,168
Add Back:
Minority interest 1,590 943 3,815 2,833
Depreciation and amortization 11,374 7,170 28,442 20,197
(Gain) loss on sale (600) (200) 543 (577)
Premium on debenture conversion 98 637 98 1,027
Write off of deferred financing costs 353 - 2,919 -
======== ======== ======== ========
Funds from operations $ 27,299 $ 16,920 $ 71,805 $ 47,648
======== ======== ======== ========
</TABLE>
INFLATION
- ---------
Inflation has remained relatively low during the last three years, and as a
result, it has not had a significant impact on the Company during this period.
The Line of Credit bears interest at a variable rate; therefore, the amount of
interest payable under the Line of Credit will be influenced by changes in
short-term interest rates, which tend to be sensitive to inflation. To the
extent an increase in inflation would result in increased operating costs, such
as in insurance, real estate taxes and utilities, substantially all of the
tenants' leases require the tenants to absorb these costs as part of their
rental obligations. In addition, inflation also may have the effect of
increasing market rental rates.
PART II: OTHER INFORMATION
- ------------------------------
Item 1. Legal Proceedings
None
Item 2. Changes in Securities and Use of Proceeds
None
Item 3. Defaults upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
20
<PAGE> 21
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
3.1.1 Second Restated and Amended Agreement of Limited Partnership
of Liberty Property Limited Partnership, dated as of October
22, 1997.
10.1 Indenture, dated as of August 14, 1997, between Liberty
Property Limited Partnership, as Obligor, and The First
National Bank of Chicago, as Trustee (the "First Indenture").
10.2 First Supplemental Indenture, dated as of August 14, 1997,
between Liberty Property Limited Partnership, as Issuer, and
The First National Bank of Chicago, as Trustee, supplementing
the First Indenture and relating to $100,000,000 principal
amount of the 7.10% Senior Notes due 2004 and $100,000,000
principal amount of the 7.25% Senior Notes due 2007 of
Liberty Property Limited Partnership.
10.3 Senior Indenture, dated as of October 24, 1997, between
Liberty Property Limited Partnership, as Obligor, and The
First National Bank of Chicago, as Trustee (the "Second
Indenture").
10.4 First Supplemental Indenture, dated as of October 24, 1997,
between Liberty Property Limited Partnership, as Issuer, and
The First National Bank of Chicago, as Trustee, supplementing
the Second Indenture and relating to the Fixed Rate and
Floating Rate Medium-Term Notes due Nine Months or More
from Date of Issue of Liberty Property Limited Partnership.
10.5 Distribution Agreement, dated October 24, 1997, between
Liberty Property Trust and Liberty Property Limited
Partnership, as Transaction Entities, and Lehman Brothers
Inc. Donaldson, Lufkin & Jenrette Securities Corporation,
First Chicago Capital Markets, Inc., J.P. Morgan Securities
Inc. and UBS Securities LLC, as Agents.
10.6 Form of Subordinated Indenture between Liberty Property
Limited Partnership, as Obligor, and The First National Bank
of Chicago, as Trustee.
27 Financial Data Schedule (EDGAR VERSION ONLY)
b. Reports on Form 8-K
During the quarterly period ended September 30, 1997, the registrants filed four
Current Reports on Form 8-K: (i) report dated July 7, 1997, reporting Items 2
and 7 and containing the Statement of Operating Revenues and Certain Operating
Expenses for the Detroit Properties (as defined therein); (ii) report dated
August 5, 1997, reporting Item 5; (iii) report dated August 11, 1997, reporting
Item 5; and (iv) report dated August 15, 1997, reporting Item 5.
21
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LIBERTY PROPERTY TRUST
/s/ JOSEPH P. DENNY October 28, 1997
- --------------------------------- --------------------------
Joseph P. Denny Date
President
/s/ GEORGE J. ALBURGER, JR. October 28, 1997
- --------------------------------- --------------------------
George J. Alburger, Jr. Date
Chief Financial Officer
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST, GENERAL PARTNER
/s/ JOSEPH P. DENNY October 28, 1997
- ---------------------------------- -------------------------
Joseph P. Denny Date
President
/s/ GEORGE J. ALBURGER, JR. October 28, 1997
- ---------------------------------- -------------------------
George J. Alburger, Jr. Date
Chief Financial Officer
22
<PAGE> 1
EXHIBIT 3.1.1
SECOND RESTATED AND AMENDED
AGREEMENT OF LIMITED PARTNERSHIP
OF
LIBERTY PROPERTY LIMITED PARTNERSHIP
DATED AS OF October 22, 1997
<PAGE> 2
LIMITED PARTNERSHIP AGREEMENT
OF
LIBERTY PROPERTY LIMITED PARTNERSHIP
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Definitions.....................................................................................2
1.1 Definitions............................................................................2
ARTICLE II
Continuation of Partnership; Business of
Partnership..........................................................................14
2.1 Continuation..........................................................................14
2.2 Name..................................................................................15
2.3 Character of the Business.............................................................15
2.4 Location of Principal Place of Business...............................................15
ARTICLE III
Term...........................................................................................15
3.1 Commencement..........................................................................15
3.2 Dissolution...........................................................................15
ARTICLE IV
Capital Contributions..........................................................................16
4.1 Capital Contributions, Partnership Interests
and Percentage Interests of the Partners..............................................16
4.2 Issuance of Additional Partnership Interests
and REIT Shares.......................................................................17
4.3 No Third Party Beneficiaries..........................................................19
4.4 No Interest on or Return of Capital
Contribution..........................................................................19
4.5 Loans to Partnership..................................................................19
4.6 Stock Incentive Plan..................................................................19
ARTICLE V
Certain Concurrent Transactions................................................................20
[INTENTIONALLY OMITTED]........................................................................20
ARTICLE VI
Allocations, Distributions and Other Tax and
Accounting Matters.............................................................................20
6.1 Allocations...........................................................................20
6.2 Distributions.........................................................................20
6.3 Books of Account......................................................................20
6.4 Reports...............................................................................20
6.5 Tax Elections and Returns.............................................................21
6.6 Tax Matters Partner...................................................................21
6.7 Withholding Payments Required By Law..................................................22
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VII
Rights, Duties and Restrictions of the
General Partner................................................................................24
7.1 Powers and Duties of General Partner..................................................24
7.2 Specified Decisions...................................................................27
7.3 Reimbursement of the General Partner..................................................27
7.4 Outside Activities of the General Partner.............................................27
7.5 Contracts with Affiliates.............................................................28
7.6 Title to Partnership Assets...........................................................28
7.7 Reliance by Third Parties.............................................................28
7.8 Indemnification by Partnership........................................................29
7.9 Liability of the General Partner......................................................30
7.10 Other Matters Concerning the General Partner..........................................31
7.11 Operation in Accordance with REIT
Requirements..........................................................................32
ARTICLE VIII
Dissolution, Liquidation and Winding-Up........................................................32
8.1 Accounting............................................................................32
8.2 Distribution on Dissolution...........................................................32
8.3 Timing Requirements...................................................................33
8.4 Documentation of Liquidation..........................................................34
ARTICLE IX
Transfer of Partnership Interests..............................................................34
9.1 General Partner Transfer..............................................................34
9.2 Transfers by Limited Partners.........................................................34
9.3 Certain Restrictions on Transfer......................................................36
9.4 Effective Dates of Transfers..........................................................37
9.5 Transfer..............................................................................38
ARTICLE X
Rights and Obligations of the Limited Partners.................................................38
10.1 No Participation in Management........................................................38
10.2 Bankruptcy of a Limited Partner.......................................................38
10.3 No Withdrawal.........................................................................38
10.4 Conflicts.............................................................................39
10.5 Provision of Information..............................................................39
10.6 Limited Partner Representatives.......................................................40
10.7 Power of Attorney.....................................................................40
ARTICLE XI
Grant of Certain Rights to Limited Partners....................................................41
11.1 Grant of Rights.......................................................................41
ARTICLE XII
Representation and Warranty of Rouse Principals................................................42
12.1 Representation and Warranty of Rouse
Principals............................................................................42
ARTICLE XIII
Indemnification and Security Interest..........................................................42
13.1 General Indemnification...............................................................42
13.2 Environmental Indemnities.............................................................43
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
13.3 Indemnity Collateral..................................................................44
13.4 Security Interest for Indemnification
Obligations...........................................................................44
13.5 Procedure for Seeking Indemnification.................................................47
13.6 Indemnification as Exclusive Remedy...................................................47
13.7 Recovery from Title Insurance Policy..................................................47
13.8 Settlements; Prior Written Consent....................................................47
13.9 Limitation of Indemnity...............................................................47
ARTICLE XIV
Amendment of Partnership Agreement; Meetings ..................................................48
14.1 Amendments............................................................................48
14.2 Meetings of the Partners..............................................................49
ARTICLE XV
General Provisions.............................................................................50
15.1 No Liability of Trustees and Others...................................................50
15.2 Notices...............................................................................50
15.3 Controlling Law.......................................................................50
15.4 Execution in Counterparts.............................................................50
15.5 Provisions Separable..................................................................51
15.6 Entire Agreement......................................................................51
15.7 Paragraph Headings....................................................................51
15.8 Gender, Etc...........................................................................51
15.9 Number of Days........................................................................51
15.10 Partners Not Agents...................................................................51
15.11 Assurances............................................................................51
15.12 Waiver of Partition...................................................................52
</TABLE>
Exhibits A through F
<PAGE> 5
THE LIMITED PARTNERSHIP INTERESTS REFERRED TO IN THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. REFERENCE IS MADE TO ARTICLE IX OF THIS AGREEMENT FOR PROVISIONS RELATING
TO VARIOUS RESTRICTIONS ON THE SALE OR OTHER TRANSFER OF THESE INTERESTS.
SECOND RESTATED AND AMENDED
AGREEMENT OF LIMITED PARTNERSHIP
OF
LIBERTY PROPERTY LIMITED PARTNERSHIP
THIS SECOND RESTATED AND AMENDED AGREEMENT OF LIMITED
PARTNERSHIP (the "Agreement") is made and entered into as of October 22, 1997 by
and among the General Partner and the Limited Partners (as those terms are
defined below).
W I T N E S S E T H:
WHEREAS, on March 28, 1994, Rouse General Corp., a
Pennsylvania corporation (the "Initial General Partner"), and Willard G. Rouse
III, George Congdon and Joseph Denny (the "Initial Limited Partners"), formed a
Pennsylvania limited partnership under the name "Liberty Property Limited
Partnership" (the "Partnership") with the Initial General Partner and the
Initial Limited Partners as the sole general partner and the sole limited
partners, respectively, of the Partnership;
WHEREAS, effective as of June 23, 1994: (i) certain persons
and entities were admitted to the Partnership as additional limited partners;
(ii) the Initial General Partner and the Initial Limited Partners withdrew from
the Partnership and their partnership interests in the Partnership were redeemed
for $100; and (iii) Liberty Property Trust, a Maryland real estate investment
trust, was admitted to the Partnership as the sole general partner thereof;
WHEREAS, various other persons and entities have been admitted
as limited partners of, or have ceased to be limited partners of, the
Partnership from June 23, 1994, through the date of this Agreement;
WHEREAS, that certain Agreement of Limited Partnership dated
as of June 23, 1994, was superseded on June 19, 1995 by that certain First
Restated and Amended Agreement of Limited Partnership, which was subsequently
amended by that certain Second Amendment to Agreement of Limited Partnership
dated as of December 22, 1995, by that certain Third Amendment to Agreement
<PAGE> 6
of Limited Partnership dated as of January 1, 1996, by that certain Fourth
Amendment to Agreement of Limited Partnership dated as of March 21, 1997, by
that certain Fifth Amendment to Agreement of Limited Partnership dated as of May
14, 1997, and by that certain Sixth Amendment to Agreement of Limited
Partnership dated as of August 11, 1997;
WHEREAS, the parties hereto are all of the Partners of
the Partnership as of the date of this Agreement;
WHEREAS, the parties desire to restate and amend said First
Restated and Amended Agreement of Limited Partnership, as so amended, in order
to incorporate the terms of the several amendments thereto and to clarify
certain other matters, such that the terms of this Agreement will supersede and
replace in their entireties the terms of said First Restated and Amended
Agreement of Limited Partnership and all amendments thereto; and
WHEREAS, the parties hereto desire to continue the Partnership
as a limited partnership under the Revised Uniform Limited Partnership Act of
the Commonwealth of Pennsylvania in accordance with the provisions of this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows, restating and
superseding hereby the terms of the First Restated and Amended Agreement of
Limited Partnership dated June 19, 1995, and all amendments thereto:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Except as otherwise herein expressly provided,
the following terms and phrases shall have the meanings as set forth below:
"Accountants" shall mean the firm or firms of
independent certified public accountants selected by the General Partner on
behalf of the Partnership and the Property Partnerships to audit the books and
records of the Partnership and the Property Partnerships and to prepare
statements and reports in connection therewith.
"Act" shall mean the Revised Uniform Limited
Partnership Act of the Commonwealth of Pennsylvania, as the same may hereafter
be amended from time to time.
-2-
<PAGE> 7
"Additional Partner" means a Person admitted to
the Partnership pursuant to the provisions hereof after the date
of this Agreement.
"Adjusted Capital Account Deficit" shall mean,
with respect to any Partner, the deficit balance, if any, in such Partner's
Capital Account as of the end of any relevant fiscal year and after giving
effect to the following adjustments:
(a) credit to such Capital Account any amounts which
such Partner is obligated or treated as obligated to
restore with respect to any deficit balance in such
Capital Account pursuant to Section 1.704-
1(b)(2)(ii)(c) of the Regulations, or is deemed to be
obligated to restore with respect to any deficit
balance pursuant to the penultimate sentences of
Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations; and
(b) debit to such Capital Account the items described
in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of
the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the requirements of the alternate test for economic effect contained
in Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted
consistently therewith.
"Administrative Expenses" shall mean (i) all
administrative and operating costs and expenses incurred by the Partnership,
(ii) all administrative, operating and other costs and expenses incurred by the
Property Partnerships, (iii) those administrative costs and expenses of the
General Partner, including salaries paid to officers of the General Partner, and
accounting and legal expenses undertaken by the General Partner on behalf or for
the benefit of the Partnership and (iv) to the extent not included in clause
(iii) above, REIT Expenses.
"Affiliate" shall mean, with respect to any
Partner (or as to any other person the affiliates of whom are relevant for
purposes of any of the provisions of this Agreement), (i) any member of the
Immediate Family of such Partner; (ii) any beneficiary of a Limited Partner
which is a trust; (iii) any trust for the benefit of any Person referred to in
the preceding clauses (i) and (ii); or (iv) any Entity which directly or
indirectly through one or more intermediaries, Controls, is Controlled by, or is
under common Control with, any Person referred to in the preceding clauses (i)
through (iii).
-3-
<PAGE> 8
"Agreement" shall mean this Limited Partnership
Agreement, as originally executed and as amended, modified, supplemented or
restated from time to time, as the context requires.
"Audited Financial Statements" shall mean
financial statements (balance sheet, statement of income, statement of partners'
equity and statement of cash flows) prepared in accordance with GAAP and
accompanied by an independent auditor's report containing an opinion thereon.
"Bankruptcy" shall mean, with respect to any
Partner, (i) the commencement by such Partner of any petition, case or
proceeding seeking relief under any provision or chapter of the federal
Bankruptcy Code or any other federal or state law relating to insolvency,
bankruptcy or reorganization, (ii) an adjudication that such Partner is
insolvent or bankrupt; (iii) the entry of an order for relief under the federal
Bankruptcy Code with respect to such Partner, (iv) the filing of any such
petition or the commencement of any such case or proceeding against such
Partner, unless such petition and the case or proceeding initiated thereby are
dismissed within ninety (90) days from the date of such filing or (v) the filing
of an answer by such Partner admitting the allegations of any such petition.
"Capital Account" shall mean, with respect to any
Partner, the separate "book" account which the Partnership shall establish and
maintain for such Partner in accordance with Section 704(b) of the Code and
Section 1.704-1(b)(2)(iv) of the Regulations and such other provisions of
Section 1.704-1(b) of the Regulations that must be complied with in order for
the Capital Accounts to be determined in accordance with the provisions of said
Regulations. In furtherance of the foregoing, the Capital Accounts shall be
maintained in compliance with Section 1.704-1(b)(2)(iv) of the Regulations; and
the provisions hereof shall be interpreted and applied in a manner consistent
therewith. In the event that a Partnership Interest is transferred in accordance
with the terms of this Agreement, the Capital Account, at the time of the
transfer, of the transferor attributable to the transferred interest shall carry
over to the transferee.
"Capital Contribution" shall mean, with respect to
any Partner, the amount of money and the initial Gross Asset Value of any
Contributed Property, net of liabilities assumed by the Partnership in
connection with such contribution or to which such property is subject when
contributed.
"Certificate" shall mean the Certificate of
Limited Partnership establishing the Partnership, as filed with the office of
the Pennsylvania Secretary of State, as it may be amended from time to time in
accordance with the terms of this Agreement and the Act.
-4-
<PAGE> 9
"Closing Price" on any date shall mean the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Shares are listed or admitted to trading or, if the Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price, or if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System or, if such system is no
longer in use, the principal other automated quotations system that may then be
in use or, if the Shares are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Shares as such person is selected from time to time by
the Board of Trustees of the General Partner.
"Code" shall mean the Internal Revenue Code of
1986, as amended and in effect from time to time. Any reference herein to a
specific section of the Code shall be deemed to include a reference to any
corresponding provision of succeeding laws.
"Completion of the Offering" shall mean the
closing of the first sale of Shares in the Offering.
"Consent of the Limited Partners" shall mean the
written consent of a Majority-In-Interest of the Limited Partners, which Consent
shall be obtained prior to the taking of any action for which it is required by
this Agreement and may be given or withheld by a Majority-In-Interest of the
Limited Partners, unless otherwise expressly provided herein, in their sole and
absolute discretion.
"Contributed Partnership Interests" shall mean,
with respect to each Limited Partner, the partnership interests in the Existing
Property Partnership(s) contributed to the Partnership by such Limited Partner
(or deemed contributed to the Partnership including on the termination and
reconstitution thereof pursuant to Code Section 708), as set forth and so
identified in the books and records of the Partnership.
"Contributed Property" shall mean each property or
other asset, in such form as may be permitted by the Act (but excluding cash)
contributed to the Partnership, with respect to the Partnership Interest held by
each Partner (or deemed
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contributed to the Partnership including on the termination and reconstitution
thereof pursuant to Code Section 708).
"Contribution Agreement" shall mean the Amended
and Restated Contribution Agreement dated as of May 19, 1994 between the
Partnership and the several Contributors named therein.
"Control" shall mean the ability, whether by the
direct or indirect ownership of shares or other equity interests, by contract or
otherwise, to elect a majority of the directors of a corporation, to select the
managing partner of a partnership, or otherwise to select, or have the power to
remove and then select, a majority of those persons exercising governing
authority over an Entity. In the case of a limited partnership, the sole general
partner, all of the general partners to the extent each has equal management
control and authority, or the managing general partner or managing general
partners thereof shall be deemed to have control of such partnership and, in the
case of a trust, any trustee thereof or any Person having the right to select
any such trustee shall be deemed to have control of such trust.
"Current Per Share Market Price" on any date shall
mean the average of the Closing Price for the five consecutive Trading Days
ending on such date.
"Debentures" means the Exchangeable Subordinated
Debentures Due 2001 issued by the Partnership, as the same may be hereafter
amended, and all replacements thereof.
"Depreciation" shall mean, with respect to any
asset of the Partnership for any fiscal year or other period, the depreciation
or amortization, as the case may be, allowed or allowable for Federal income tax
purposes in respect of such asset for such fiscal year or other period;
provided, however, that if there is a difference between the Gross Asset Value
and the adjusted tax basis of such asset, Depreciation shall mean "book"
depreciation or amortization as determined under Section 1.704-1(b)(2)(iv)(g)(3)
of the Regulations.
"Entity" shall mean any general partnership,
limited partnership, corporation, joint venture, trust, business trust, real
estate investment trust or association.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time (or any corresponding
provisions of succeeding laws).
"Existing Property Partnership Agreements" shall
mean the partnership agreements under which the Existing Property Partnerships
are constituted, as amended from time to time.
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"Existing Property Partnership Interests" shall
mean the interests of the Partnership as a partner in each of the
Existing Property Partnerships.
"Existing Property Partnerships" shall mean those
partnerships listed on Exhibit B hereto.
"GAAP" shall mean generally accepted accounting
principles in effect from time to time.
"General Partner" shall mean Liberty Property
Trust, a Maryland real estate investment trust, its duly admitted successors and
assigns and any other Person who is a general partner of the Partnership at the
time of reference thereto.
"Gross Asset Value" shall mean, with respect to
any asset of the Partnership, such asset's adjusted basis for Federal income tax
purposes, except as follows:
(a) the initial Gross Asset Value of any asset
contributed by a Partner to the Partnership shall be the gross
fair market value of such asset at the time of its
contribution as reasonably determined by the General Partner
and as so reflected in the books and records of the
Partnership;
(b) if the General Partner reasonably determines that
an adjustment is necessary or appropriate to reflect the
relative economic interests of the Partners, the Gross Asset
Values of all Partnership assets shall be adjusted to equal
their respective gross fair market values, as reasonably
determined by the General Partner, as of the following times:
(i) immediately prior to a Capital
Contribution (other than a de minimis Capital
Contribution) to the Partnership by a new or existing
Partner as consideration for a Partnership Interest;
(ii) immediately prior to the distribution
by the Partnership to a Partner of more than a de
minimis amount of Partnership property as
consideration for the redemption of a Partnership
Interest; and
(iii) immediately prior to the liquidation
of the Partnership within the meaning of Section
1.704-1(b)(2)(ii)(g) of the Regulations;
(c) the Gross Asset Values of Partnership assets
distributed to any Partner shall be the gross fair market
values of such assets as reasonably determined
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by the General Partner as of the date of distribution;
and
(d) the Gross Asset Values of Partnership assets
shall be increased (or decreased) to reflect any adjustments
to the adjusted basis of such assets pursuant to Sections
734(b) or 743(b) of the Code, but only to the extent that such
adjustments are taken into account in determining Capital
Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Regulations; provided, however, that Gross Asset Values shall
not be adjusted pursuant to this paragraph to the extent that
the General Partner reasonably determines that an adjustment
pursuant to paragraph (b) above is necessary or appropriate in
connection with a transaction that would otherwise result in
an adjustment pursuant to this paragraph (d).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of computing
Net Income and Net Loss. Any adjustment to the Gross Asset Values of Partnership
property shall require an adjustment to the Partners' Capital Accounts; as for
the manner in which such adjustments are allocated to the Capital Accounts, see
clause (c) of the definition of Net Income and Net Loss in the case of
adjustment by Depreciation, and clause (d) of said definition in all other
cases.
"Immediate Family" shall mean, with respect to any
Person, such Person's spouse, parents, parents-in-law, descendants, brothers,
sisters, first cousins, brothers-in-law and sisters-in-law.
"Indemnitee" shall mean (i) any Person made a
party to a proceeding by reason of his status as (A) the General Partner, (B) a
trustee, director, officer or Liquidating Trustee of the Partnership or the
General Partner or (C) a Limited Partner Representative, and (ii) such other
Persons (including Affiliates of the General Partner or the Partnership) as the
General Partner may designate from time to time, in its sole and absolute
discretion.
"Indemnity Collateral" shall have the meaning set
forth in Section 13.3.
"Independent Trustee(s)" shall mean those Trustees
of the General Partner who are not officers or employees of the
General Partner.
"Lien" shall mean any liens, security interests,
mortgages, deeds of trust, pledges, options, rights of first offer or first
refusal and any other similar encumbrances of any nature whatsoever.
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"Limited Partner Representatives" shall have the
meaning set forth in Section 10.6 hereof.
"Limited Partners" shall mean those Persons listed
under the heading "Limited Partners" on Exhibit A attached hereto in their
respective capacities as limited partners of the Partnership, their permitted
successors or assigns as limited partner hereof, or any Person who, at the time
of reference thereto, is a limited partner of the Partnership.
"Liquidating Trustee" shall mean such individual
or entity as is selected as the Liquidating Trustee hereunder by the General
Partner, which individual or Entity may include an Affiliate of the General
Partner, provided such Liquidating Trustee agrees in writing to be bound by the
terms of this Agreement. The Liquidating Trustee shall be empowered to give and
receive notices, reports and payments in connection with the dissolution,
liquidation and/or winding up of the Partnership and shall hold and exercise
such other rights and powers as are necessary or required to authorize all
parties to deal with the Liquidating Trustee in connection with the dissolution,
liquidation and/or winding-up of the Partnership and shall hold and exercise
such other rights and powers as are necessary or required to permit all parties
to deal with the Liquidating Trustee in connection with the dissolution,
liquidation and/or winding-up of the Partnership.
"Majority-In-Interest of the Limited Partners"
shall mean Limited Partner(s) who hold in the aggregate more than fifty percent
(50%) of the Percentage Interests then allocable to and held by the Limited
Partners, as a class.
"Minimum Gain Attributable to Partner Nonrecourse
Debt" shall mean "partner nonrecourse debt minimum gain" as determined in
accordance with Regulation Section 1.704-2(i)(2).
"Net Financing Proceeds" shall mean the cash
proceeds received by the Partnership in connection with any borrowing or
refinancing of borrowing (i) by or on behalf of the Partnership or (ii) by or on
behalf of any Property Partnership (whether or not secured), after deduction of
all costs and expenses incurred by the Partnership or the Property Partnership
in connection with such borrowing, and after deduction of that portion of such
proceeds used to repay any other indebtedness of the Partnership or Property
Partnerships, or any interest or premium thereon.
"Net Income or Net Loss" shall mean, for each
fiscal year or other applicable period, an amount equal to the Partnership's net
income or loss for such year or period as determined for federal income tax
purposes by the Accountants, determined in accordance with Section 703(a) of the
Code (for this purpose, all items of income, gain, loss or deduction
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<PAGE> 14
required to be stated separately pursuant to Section 703(a) of the Code shall be
included in taxable income or loss), with the following adjustments: (a) by
including as an item of gross income any tax-exempt income received by the
Partnership; (b) by treating as a deductible expense any expenditure of the
Partnership described in Section 705(a)(2)(B) of the Code (including amounts
paid or incurred to organize the Partnership (unless an election is made
pursuant to Code Section 709(b)) or to promote the sale of interests in the
Partnership and by treating deductions for any losses incurred in connection
with the sale or exchange of Partnership property disallowed pursuant to Section
267(a)(1) or Section 707(b) of the Code as expenditures described in Section
705(a)(2)(B) of the Code); (c) in lieu of depreciation, depletion, amortization,
and other cost recovery deductions taken into account in computing total income
or loss, there shall be taken into account Depreciation; (d) gain or loss
resulting from any disposition of Partnership property with respect to which
gain or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of such property rather than its adjusted tax
basis; and (e) in the event of an adjustment of the Gross Asset Value of any
Partnership asset which requires that the Capital Accounts of the Partnership be
adjusted pursuant to Regulation Section 1.704-1(b)(2)(iv)(e), (f) and (m), the
amount of such adjustment is to be taken into account as additional Net Income
or Net Loss pursuant to Exhibit C. Once an item of income, gain, loss or
deductions has been included in the initial computation of Net Income or Net
Loss or is subjected to the special allocation rules in Exhibit C, Net Income or
Net Loss shall be recomputed without regard to such item.
"Net Operating Cash Flow" shall mean, with respect
to any fiscal period of the Partnership, the excess, if any, of "Receipts" over
"Expenditures". For purposes hereof, the term "Receipts" means the sum of all
cash receipts of the Partnership from all sources for such period, including Net
Sale Proceeds and Net Financing Proceeds but excluding Capital Contributions,
and any amounts held as reserves as of the last day of such period which the
General Partner reasonably deems to be in excess of reserves as determined
below. The term "Expenditures" means the sum of (a) all cash expenses of the
Partnership for such period, (b) the amount of all payments of principal and
interest on account of any indebtedness of the Partnership including payments of
principal and interest on account of loans from the General Partner, or amounts
due on such indebtedness during such period, and (c) such cash reserves as of
the last day of such period as the General Partner deems necessary or
appropriate for any capital, operating or other expenditure, including, without
limitation, contingent liabilities.
"Net Sale Proceeds" shall mean the cash proceeds
received by the Partnership in connection with a sale of any asset (i) by or on
behalf of the Partnership or (ii) by or on
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<PAGE> 15
behalf of a Property Partnership, after deduction of any costs or expenses
incurred by the Partnership or a Property Partnership, or payable specifically
out of the proceeds of such sale (including, without limitation, any repayment
of any indebtedness required to be repaid as a result of such sale or which the
General Partner elects to repay out of the proceeds of such sale, together with
accrued interest and premium, if any, thereon and any sales commissions or other
costs and expenses due and payable to any Person in connection with a sale,
including to a Partner or its Affiliates).
"Nonrecourse Deductions" shall have the meaning
set forth in Sections 1.704-2(b)(1) and (c) of the Regulations.
"Nonrecourse Liabilities" shall have the meaning
set forth in Section 1.704-2(b)(3) of the Regulations.
"Offering" shall have the meaning set forth in the
Registration Statement.
"Partner Nonrecourse Deductions" shall have the
meaning set forth in Section 1.704-2(i)(2) of the Regulations.
"Partner(s)" shall mean the General Partner and/or
the Limited Partners, their duly admitted successors or assigns or any Person
who is a partner of the Partnership at the time of reference thereto.
"Partnership" shall mean the limited partnership
hereby constituted, as such limited partnership may from time to
time be constituted.
"Partnership Interest" shall mean the ownership
interest of a Partner in the Partnership from time to time, including each
Partner's Percentage Interest and such Partner's Capital Account. Wherever in
this Agreement reference is made to a particular Partner's Partnership Interest
it shall be deemed to refer to such Partner's Percentage Interest and shall
include the proportionate amount of such Partner's other interests in the
Partnership which are attributable to or based upon the Partner's Partnership
Interest.
"Partnership Minimum Gain" shall have the meaning
set forth in Section 1.704-2(b)(2) of the Regulations.
"Partnership Record Date" means the record date
established by the General Partner for distribution of Net Operating Cash Flow
pursuant to Section 6.1 hereof, which record date shall be the same as the
record date established by the General Partner for distribution to its
shareholders of some or all of its portion of such distribution.
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"Percentage Interest" shall mean, with respect to
any Partner, the percentage ownership interest of such Partner in such items of
the Partnership as to which the term "Percentage Interests" is applied in this
Agreement. Such Percentage Interest shall be determined by dividing the
Partnership Interests owned by such Partner by the total number of Partnership
Interests then outstanding and as specified in Exhibit A hereto, as such Exhibit
may be amended from time to time.
"Person" shall mean any natural person or Entity.
"Property" or "Properties" shall mean any real
estate (and related assets) in which the Partnership or any Property
Partnership, directly or indirectly, owns or acquires ownership of a fee or
leasehold interest.
"Property Partnership Agreements" shall mean and
include the Existing Property Partnership Agreements and any partnership
agreement, certificate of incorporation, bylaws or similar agreement, document
or body of law (as any of the foregoing may be amended, modified or supplemented
from time to time) under which a Property Partnership is constituted or by which
it is governed.
"Property Partnership Interests" shall mean and
include Existing Property Partnership Interests and the interest of the
Partnership as a partner or other equity participant in any Property Partnership
acquired after the date hereof.
"Property Partnerships" shall mean and include the
Existing Property Partnerships and any partnership or other Entity in which the
Partnership is or becomes a partner or other equity participant and which is
formed for the purpose of acquiring, developing or owning a Property or a
proposed Property.
"Prospectus" shall mean any prospectus filed with
the Securities and Exchange Commission under Rule 424 of the Act, and any
amendment or supplement thereto, as part of the Registration Statement.
"Registration Statement" shall mean the
Registration Statement No. 33-77084 (including the prospectus contained therein)
heretofore filed by the General Partner with the SEC, and any amendments at any
time hereafter made thereto (other than post-effective amendments), pursuant to
which the General Partner proposes to offer and sell certain of its Shares.
"Regulations" shall mean the Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
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"Regulatory Allocations" shall have the meaning
set forth in Exhibit C hereto.
"REIT" shall mean a real estate investment trust
as defined in Section 856 of the Code.
"REIT Expenses" shall mean (i) costs and expenses
relating to the formation and continuity of existence of the General Partner and
its subsidiaries (which subsidiaries shall, for purposes of this definition,
include the Property Partnerships and be included within the definition of
General Partner), including taxes, fees and assessments associated therewith,
any and all costs, expenses or fees payable to any director or trustee of the
General Partner or such subsidiaries, (ii) costs and expenses relating to any
offer or registration of securities by the General Partner and all statements,
reports, fees and expenses incidental thereto, including underwriting discounts
and selling commissions applicable to any such offer of securities, (iii) costs
and expenses associated with the preparation and filing of any periodic reports
by the General Partner under federal, state or local laws or regulations,
including filings with the SEC, (iv) costs and expenses associated with
compliance by the General Partner with laws, rules and regulations promulgated
by any regulatory body, including the SEC, and (v) all other operating or
administrative costs of the General Partner incurred in the ordinary course of
its business on behalf of the Partnership.
"REIT Requirements" shall have the meaning set
forth in Section 6.2 hereof.
"Rights" shall have the meaning set forth in
Section 11.1 hereof.
"Rouse Principals" shall mean Willard G. Rouse
III, George F. Congdon and Joseph P. Denny.
"Rouse Senior Executives" shall mean Willard G.
Rouse III, George F. Congdon, Joseph P. Denny, David C. Hammers, Robert E.
Fenza, Leslie Reid Price, Claiborn M. Carr, III, John A. Castorina, Jill R.
Felix, Larry Gildea and Robert Goldschmidt.
"SEC" shall mean the United States Securities and
Exchange Commission.
"Section 704(c) Tax Items" shall have the meaning
set forth in Exhibit C.
"Shares" shall mean the common shares of
beneficial interest of the General Partner.
"Special Indemnitors" shall mean Willard G. Rouse
III, George F. Congdon, Joseph P. Denny and David C. Hammers.
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"Special Indemnity Collateral" shall have the
meaning set forth in Section 13.3.
"Stock Incentive Plan" shall mean the General
Partner's 1994 Share Incentive Plan and any other stock option or stock
incentive plan hereafter adopted by the General Partner.
"Stock Option" shall mean an option to purchase
Shares granted under the Stock Incentive Plan.
"Stock Option Agreement" shall mean the form of
Stock Option Agreement to be used under the Stock Incentive Plan.
"Specified Decisions" shall have the meaning set
forth in Section 7.2 hereof.
"TLC Contribution Agreement" shall mean that
certain Contribution and Acquisition Agreement dated as of March 5, 1997, and
amended by that certain Amendment No. 1 to Contribution and Acquisition
Agreement dated as of April 17, 1997, by and among The Liberty Corporation,
certain of its affiliates named therein, the Partnership and the General
Partner.
"Tax Items" shall have the meaning set forth in
Exhibit C.
"Trading Day" shall mean a day on which the
principal national securities exchange on which the Common Stock is listed or
admitted to trading is open for the transaction of business or, if the Shares
are not listed or admitted to trading on any national securities exchange, shall
mean any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
"Underwriting Agreement" shall mean that certain
Underwriting Agreement for the offering and sale of 18,250,000 Shares among the
General Partner, the Partnership and the representatives of the several
underwriters named therein.
ARTICLE II
CONTINUATION OF PARTNERSHIP; BUSINESS OF PARTNERSHIP
2.1 Continuation. The parties hereto do hereby continue the
Partnership as a limited partnership pursuant to the provisions of the Act for
the purposes and upon the terms and conditions hereinafter set forth. The
Partners agree that the rights and liabilities of the Partners shall be as
provided in the Act, except as otherwise herein expressly provided.
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2.2 Name. The name of the Partnership shall be Liberty Property
Limited Partnership, or such other name as shall be chosen from time to time by
the General Partner in its sole discretion.
2.3 Character of the Business. The purpose of the Partnership
shall be to acquire, hold, own, develop, construct, improve, maintain, operate,
sell, lease, transfer, encumber, convey, exchange, and otherwise dispose of or
deal with the Properties and any other real and personal property of all kinds;
to exercise all of the powers of a partner in the Property Partnerships; to
acquire, own, deal with and dispose of Property Partnership Interests; to
undertake such other activities as may be necessary, desirable or appropriate to
the business of the Partnership; to engage in such other activities as shall be
necessary, desirable or appropriate to effectuate the foregoing purposes; and to
otherwise engage in any enterprise or business in which a limited partnership
may engage or conduct under the Act. The Partnership shall have all powers
necessary, desirable or appropriate to accomplish the purposes enumerated. In
connection with the foregoing, the Partnership shall have full power and
authority, directly or through its interest in Property Partnerships, to enter
into, perform, and carry out contracts of any kind, to borrow money and to issue
evidences of indebtedness, (including, without limitation, the Debentures)
whether or not secured by mortgages, security interests or other liens, and to
enter into any and all indentures and other agreements and documents relating to
such evidence of indebtedness, directly or indirectly, and to acquire and
construct additional Properties necessary or useful in connection with its
business.
2.4 Location of Principal Place of Business. The location of
the principal place of business of the Partnership shall be at 65 Valley Stream
Parkway, Suite 100, Great Valley Corporate Center, Malvern, PA 19335, or such
other location as shall be selected from time to time by the General Partner in
its sole discretion.
ARTICLE III
TERM
3.1 Commencement. The Partnership's term commenced upon the
filing of the Certificate with the Secretary of State of Pennsylvania on March
28, 1994.
3.2 Dissolution. The Partnership shall continue until dissolved
upon the occurrence of the earliest of the following events:
(a) the dissolution, termination, withdrawal,
retirement or Bankruptcy of the General Partner, subject to the Partnership
being continued as provided in Section 9.1 hereof;
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(b) the election to dissolve the Partnership made
in writing by the General Partner with the Consent of the Limited Partners;
(c) the sale or other disposition of all or
substantially all of the assets of the Partnership, unless the General Partner
elects to continue the Partnership business for the purpose of the receipt and
the collection of indebtedness or the collection of any other consideration to
be received in exchange for the assets of the Partnership (which activities
shall be deemed to be part of the winding up of the affairs of the Partnership);
(d) the entry of a decree of judicial dissolution
of the Partnership pursuant to the provisions of the Act, which decree is final
and not subject to appeal; or
(e) December 31, 2090.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Capital Contributions, Partnership Interests and Percentage
Interests of the Partners. In various transactions from the organization of the
Partnership through the date of this Agreement, the Partners have made or caused
to be made their respective Capital Contributions to the Partnership as
reflected on the books of the Partnership. The Partners shall own Partnership
Interests in the amounts set forth in Exhibit A and shall have the Percentage
Interests in the Partnership as set forth in such Exhibit, which Percentage
Interests shall be adjusted in Exhibit A from time to time by the General
Partner to the extent necessary to properly reflect conversions of Partnership
Interests, Capital Contributions, the issuance of additional Partnership
Interests, or any other event having an effect on a Partner's Percentage
Interest. Any such changes to Exhibit "A" may be made by the General Partner
without the need for a formal amendment to this Agreement, and the Exhibit "A"
maintained from time to time on the books of the Partnership shall, absent
manifest error, be conclusive as to the Partnership Interests and Percentage
Interests of the Partners. A Partnership Interest refers to each separate unit
of ownership interest in the Partnership. The number of Partnership Interests
and Percentage Interests of each Partner are as specified on Exhibit A hereto as
such schedule may be amended from time to time to reflect transfers of
Partnership Interests, issuance of additional Partnership Interests and
conversions of Partnership Interests, but no such amendment can itself change
the number of Partnership Interests held by each Partner, as specified on such
Exhibit A. Except to the extent specifically set forth in this Agreement with
respect to the General Partner, the Partners shall have no obligation to make
any additional Capital Contributions or loans to the Partnership, even if the
failure to do so could result in the Bankruptcy or insolvency of the Partnership
or any other adverse consequence to the Partnership. At the time of the
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mandatory exchange of Property Partnership Interests for Partnership Interests
pursuant to Section 8.2(b) of the Existing Property Partnership Agreements, the
obligations of the respective transferors with respect to their loans referred
to in said Section 8.2(b) will be assumed by the Partnership, and the respective
transferors will be released by the holder of such loans from any further
personal liability under such loans.
4.2 Issuance of Additional Partnership Interests and
REIT Shares.
(a) The General Partner is hereby authorized to
cause the Partnership from time to time to issue to one or more of the Partners
(including the General Partner) or other Persons additional Partnership
Interests in one or more classes, or one or more series of any of such classes,
with such designations, preferences and participating, optional or other special
rights, powers and duties, including rights, powers and duties which may be
senior to interests in the Partnership theretofore issued, all as shall be
determined by the General Partner in its sole and absolute discretion and
without the approval of any of the Limited Partners, including, without
limitation, (i) the allocations of items of Partnership income, gain, loss,
deduction and credit to each such class or series of Partnership Interests: (ii)
the right of each such class or series of Partnership Interests to share in
Partnership distributions; and (iii) the rights of each such class or series of
Partnership Interests upon dissolution and liquidation of the Partnership,
provided that no such additional Partnership Interests shall be issued to the
General Partner unless either (i) the additional Partnership Interests are
issued in connection with an issuance of shares of the General Partner, which
shares have designations, preferences and other rights, all such that the
economic interests thereof are substantially similar to the designations,
preferences and other rights of the additional Partnership Interests issued to
the General Partner in accordance with this Section 4.2(a) and the General
Partner shall make a Capital Contribution to the Partnership in an amount equal
to the net proceeds, if any, received by the General Partner in connection with
the issuance of such shares of the General Partner, or (ii) the additional
Partnership Interests are issued to all Partners in proportion to their
respective Percentage Interests.
(b) After the initial public offering of Shares,
the General Partner shall not issue any additional Shares (other than Shares
issued pursuant to the provisions of Section 11.1 and Exhibit D hereto and
Shares issued whose proceeds are used to purchase Partnership Interests
transferred pursuant to Section 11.1 and Exhibit D hereto) or rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase Shares (collectively, "New Securities") other than to
all holders of Shares unless (i) the General Partner shall cause the Partnership
to issue to the General Partner (or in the absence of such issuance, there shall
be
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deemed to have been issued to the General Partner) Partnership Interests or
rights, options, warrants or convertible or exchangeable securities of the
Partnership having designations, preferences and other rights, all such that the
economic interests are substantially similar to those of the New Securities, and
(ii) the General Partner contributes the net proceeds, if any, from the issuance
of such New Securities and from the exercise of rights contained in such New
Securities to the Partnership.
(c) In connection with the initial public
offering of Shares by the General Partner, and any other issuance of Shares
pursuant to this Section 4.2, the General Partner shall make a Capital
Contribution to the Partnership of the net proceeds received by it in connection
with such issuance, provided that if the proceeds actually received by the
General Partner are less than the gross proceeds of such issuance as a result of
any underwriter's discount, placement fees, commissions or other expenses paid
or incurred in connection with such issuance, then the General Partner shall be
deemed to have made a Capital Contribution to the Partnership in the amount of
the gross proceeds of such issuance and the Partnership shall be deemed
simultaneously to have reimbursed the General Partner pursuant to Section 7.3
for the amount of such underwriters' discount, placement fees, commissions or
other expenses.
(d) No Person shall have any preemptive,
preferential or other similar right with respect to (i) additional Capital
Contributions or loans to the Partnership; or (ii) issuance or sale of any
Partnership Interests.
(e) The General Partner is hereby authorized on
behalf of each of the Partners to amend this Agreement to reflect the admission
of any Additional Partner or any increase in the Percentage Interests of any
Partner and the corresponding reduction of the Percentage Interests of the other
Partners in accordance with the provisions of this Section 4.2, and the General
Partner shall promptly send a copy of such amendment to each Limited Partner.
(f) Pursuant to subsections 4.2(a) and (b)
hereof, on August 11, 1997 the General Partner contributed to the Partnership
approximately $120,813,500, representing the net proceeds from the issuance of
New Securities consisting of 5,000,000 shares of 8.80% Series A Cumulative
Redeemable Preferred Shares of Beneficial Interest, Liquidation Preference
$25.00 per share. Effective upon the Partnership's receipt of such net proceeds
the Partnership is deemed to have issued to the General Partner 5,000,000 units
of 8.80% Series A Cumulative Redeemable Preferred Partnership Interests, the
designations, preferences and participating, optional or other special rights,
powers and duties of which are set forth on Exhibit F hereto.
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4.3 No Third Party Beneficiaries. No creditor or other third
party shall have the right to enforce any right or obligation of any Partner to
make Capital Contributions or loans or to pursue any other right or remedy
hereunder or at law or in equity, it being understood and agreed that the
provisions of this Agreement shall be solely for the benefit of, and may be
enforced solely by, the parties hereto and their respective successors and
assigns. None of the rights or obligations of the Partners herein set forth to
make Capital Contributions or loans to the Partnership shall be deemed an asset
of the Partnership for any purpose by any creditor or other third party, nor may
such rights or obligations be sold, transferred or assigned by the Partnership
or pledged or encumbered by the Partnership to secure any debt or other
obligation of the Partnership or of any of the Partners.
4.4 No Interest on or Return of Capital Contribution. No
Partner shall be entitled to interest on its Capital Contribution or, except as
otherwise specifically provided herein, have any right to demand or receive the
return of its Capital Contribution.
4.5 Loans to Partnership. At the option of the General Partner,
any Partner (including, without limitation, the General Partner) may make loans
to the Partnership on terms deemed by the General Partner to be commercially
reasonable.
4.6 Stock Incentive Plan. If at any time or from time to time
Stock Options granted in connection with the General Partner's Stock Incentive
Plan are exercised or restricted Shares are issued in accordance with the terms
of the Stock Incentive Plan:
(a) the General Partner shall, as soon as
practicable after such exercise, contribute to the capital of the Partnership an
amount equal to the exercise price paid to the General Partner by such
exercising party in connection with the exercise of the Stock Option; and
(b) with respect to the issuance of Stock
Options, the General Partner shall be deemed to have contributed to the
Partnership as a Capital Contribution pursuant to Section 4.6(a) hereof an
amount equal to the excess of the Current Per Share Market Price (as of the
Trading Date immediately preceding the date on which the purchase of the Shares
by such exercising party is consummated) over the amount contributed in respect
of the exercise of such Options pursuant to Section 4.6(a) multiplied by the
number of Shares delivered by the General Partner to such exercising party, and
with respect to the issuance of restricted Shares such Current Per Share Market
Price multiplied by the number of restricted Shares so issued.
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ARTICLE V
CERTAIN CONCURRENT TRANSACTIONS
[INTENTIONALLY OMITTED]
ARTICLE VI
ALLOCATIONS, DISTRIBUTIONS AND OTHER TAX AND ACCOUNTING MATTERS
6.1 Allocations. The Net Income, Net Loss and/or other
Partnership items shall be allocated pursuant to the provisions of Exhibit C
hereto.
6.2 Distributions. Except as provided in Section 8.2, the
General Partner shall cause the Partnership to distribute all or any portion of
Net Operating Cash Flow to the Partners from time to time as determined by the
General Partner, but in any event not less frequently than quarterly in such
amounts as the General Partner shall determine; provided, however, (a) that all
such distributions shall be made pro rata in accordance with the Partners' then
Percentage Interests; (b) that distributions to be received by newly admitted
Limited Partners in their capacity as partners of the Partnership shall be
pro-rated to reflect the portion of the fiscal quarter of the Partnership for
which the newly admitted Limited Partners held their Partnership Interests and
shall not be pro rata in accordance with their then Percentage Interests; and
(c) that notwithstanding the foregoing, the General Partner shall use its best
efforts to cause the Partnership to distribute sufficient amounts to enable the
General Partner to pay shareholder dividends that will (i) satisfy the
requirements for qualifying as a REIT under the Code and Regulations ("REIT
Requirements"), and (ii) avoid any federal income or excise tax liability of the
General Partner.
6.3 Books of Account. At all times during the continuance of
the Partnership, the General Partner shall maintain or cause to be maintained
full, true, complete and correct books of account. In addition, the Partnership
shall keep all records required to be kept pursuant to the Act.
6.4 Reports. The General Partner shall cause to be sent to the
Limited Partners promptly after receipt of the same from the Accountants and in
no event later than 105 days after the close of each fiscal year of the
Partnership, copies of Audited Financial Statements for the Partnership, or of
the General Partner if such statements are prepared solely on a consolidated
basis with the General Partner, for the immediately preceding fiscal year of the
Partnership. The Partnership shall also cause to be prepared such reports and/or
information as are
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necessary for the General Partner to determine its qualification as a REIT and
its compliance with REIT Requirements.
6.5 Tax Elections and Returns. All elections required or
permitted to be made by the Partnership under any applicable tax law shall be
made by the General Partner in its sole discretion. The General Partner shall
cause the Accountants to prepare and submit to the Limited Partner
Representatives on or before March 31st of each year for review all federal and
state income tax returns of the Partnership and cause the Accountants for the
Property Partnerships to submit to the Limited Partner Representatives on or
before March 31st of each year for review all federal and state income tax
returns of the Property Partnerships. If the Limited Partner Representatives
determine that any modifications to the tax returns of the Partnership or any
Property Partnership should be considered, the Limited Partner Representatives
shall, within ten (10) days following receipt of such tax returns from the
Accountants or the General Partner, indicate to the Accountants or to the
General Partner to advise the Property Partnership's accountants of the
suggested revisions to the tax returns, which returns shall be resubmitted to
the Limited Partner Representatives for their review (but not approval). The
Limited Partner Representatives shall complete their review of the resubmitted
returns within ten (10) days after receipt thereof from the Accountants or the
General Partner. The General Partner shall consult in good faith with the
Limited Partner Representatives regarding any proposed modifications to the tax
returns of the Partnership and/or the Property Partnerships. A statement of the
allocation of Net Income or Loss of the Partnership shown on the annual income
tax returns prepared by the Accountants and a statement of the allocation of Net
Income or Net Loss shown on the income tax return of the Property Partnerships
shall be transmitted and delivered to the Limited Partner Representatives within
ten (10) days of the receipt thereof by the Partnership. The General Partner
shall be responsible for preparing and filing all federal and state tax returns
for the Partnership and furnishing copies thereof to the Partners, together with
required Partnership schedules showing allocations of tax items and copies of
the tax returns of all Property Partnerships, all within the period of time
prescribed by law.
6.6 Tax Matters Partner. The General Partner is hereby
designated as the Tax Matters Partner within the meaning of Section 6231 (a)(7)
of the Code for the Partnership; provided, however, that (i) in exercising its
authority as Tax Matters Partner it shall be limited by the provisions of this
Agreement affecting tax aspects of the Partnership; (ii) the General Partner
shall consult in good faith with the Limited Partner Representatives regarding
the filing of a Code Section 6227(b) administrative adjustment request with
respect to the Partnership or a Property Partnership before filing such request,
it being understood, however, that the provisions hereof shall not be
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construed to limit the ability of any Partner, including the General Partner, to
file an administrative adjustment request on its behalf pursuant to Section
6227(a) of the Code; (iii) the General Partner shall consult in good faith with
the Limited Partner Representatives regarding the filing of a petition for
judicial review of an administrative adjustment request under Section 6228 of
the Code, or a petition for judicial review of a final partnership
administrative judgment under Section 6226 of the Code relating to the
Partnership before filing such petition; (iv) the General Partner shall give
prompt notice to the Limited Partner Representatives of the receipt of any
written notice that the Internal Revenue Service or any state or local taxing
authority intends to examine or audit Partnership income tax returns for any
year, receipt of written notice of the beginning of an administrative proceeding
at the Partnership level relating to the Partnership under Section 6223 of the
Code, receipt of written notice of the final Partnership administrative
adjustment relating to the Partnership pursuant to Section 6223 of the Code, and
receipt of any request from the Internal Revenue Service for waiver of any
applicable statute of limitations with respect to the filing of any tax return
by the Partnership and (v) the General Partner shall promptly notify the Limited
Partner Representatives if the General Partner does not intend to file for
judicial review with respect to the Partnership. The General Partner, in acting
on behalf of the Partnership as tax matters partner of a Property Partnership,
shall afford the Limited Partner Representatives the same rights with respect to
Property Partnership tax matters as are afforded to the Limited Partner
Representatives under this Section 6.6.
6.7 Withholding Payments Required By Law.
(a) Unless treated as a Tax Payment Loan (as
hereinafter defined), any amount paid by the Partnership for or with respect to
any Partner on account of any withholding tax or other tax payable with respect
to the income, profits or distributions of the Partnership pursuant to the Code,
the Treasury Regulations, or any state or local statute, regulation or ordinance
requiring such payment (a "Withholding Tax Act") shall be treated as a
distribution to such Partner for all purposes of this Agreement, consistent with
the character or source of the income, profits or cash which gave rise to the
payment or withholding obligation. To the extent that the amount required to be
remitted by the Partnership under the Withholding Tax Act exceeds the amount
then otherwise distributable to such Partner, the excess shall constitute a loan
from the Partnership to such Partner (a "Tax Payment Loan") which shall be
payable upon demand and shall bear interest, from the date that the Partnership
makes the payment to the relevant taxing authority, at the rate announced from
time to time by Citibank, N.A. (or any successor thereto) as its "prime rate",
plus 5 percentage points, compounded monthly (but in no event higher than the
highest interest rate permitted by applicable law). So long as any Tax
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Payment Loan to any Partner or the interest thereon remains unpaid, the
Partnership shall make future distributions due to such Partner under this
Agreement by applying the amount of any such distributions first to the payment
of any unpaid interest on such Tax Payment Loan and then to the repayment of the
principal thereof, and no such future distributions shall be paid to such
Partner until all of such principal and interest has been paid in full.
(b) The General Partner shall have the authority
to take all actions necessary to enable the Partnership to comply with the
provisions of any Withholding Tax Act applicable to the Partnership and to carry
out the provisions of this Section. Nothing in this Section shall create any
obligation on the General Partner to advance funds to the Partnership or to
borrow funds from third parties in order to make any payments on account of any
liability of the Partnership under a Withholding Tax Act.
(c) In the event that a Tax Payment Loan is not
paid by a Limited Partner within 30 days after written demand therefor is made
by the General Partner, the General Partner, as such Limited Partner's
attorney-in-fact, may execute any and all such documents and take any and all
such other action as the Limited Partner could take, in the Limited Partner's
name, place and stead, to exercise Rights under Article XI hereof and to deliver
on behalf of such Limited Partner a Sale Component Exercise Notice (as that term
is defined in Exhibit D hereto) with respect to such Limited Partner's
Partnership Interests or any portion thereof and (all documents relating
thereto, including, without limitation, a bill of sale for such Partnership
Interests), whose proceeds will be sufficient, in the General Partner's
judgment, to pay such Loan, all accrued interest thereon and all costs incurred
by the Partnership in connection with attempting to collect such Loan, and to
apply the proceeds received upon the closing of the exercise of such Rights to
repay such Loan, accrued interest and costs, with any balance of such proceeds
being for the account of such Limited Partner. Each Limited Partner hereby
irrevocably constitutes and appoints the General Partner with full power of
substitution, to take any and all such action on behalf of the Limited Partner
as is set forth in this Section 6.7(c). Such appointment shall survive the death
or incompetency of each Limited Partner to the fullest extent permitted by law.
(d) Any Partner who is not a nonresident alien or
a foreign entity, such as a corporation, partnership, trust or estate (as those
terms are defined in the Code and the Treasury Regulations) shall deliver to the
General Partner a Certification of Non-Foreign Status in the form attached
hereto as Schedule 3 (the "Non-Foreign Certificate") for withholding purposes
under Sections 1445 and 1446 of the Code. In the event that a Partner (i) is a
nonresident alien or foreign entity, such as a corporation, partnership, trust
or estate (as those terms are
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defined in the Code and the Treasury Regulations), or (ii) does not furnish a
Non-Foreign Certificate to the General Partner, the withholding provisions in
this Section 6.7 shall apply for purposes of Sections 1445 and 1446 of the Code.
ARTICLE VII
RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER
7.1 Powers and Duties of General Partner.
(a) The General Partner shall be responsible for
the management of the Partnership's business and affairs. Except as otherwise
herein expressly provided, and subject to the limitations contained in Section
7.2 hereof with respect to Specified Decisions, the General Partner shall have,
and is hereby granted, full and complete power, authority and discretion to take
such action for and on behalf of the Partnership and in its name as the General
Partner shall, in its sole and absolute discretion, deem necessary or
appropriate to carry out the Partnership's business and the purposes for which
the Partnership was organized. Except as otherwise expressly provided herein,
and subject to Section 7.2 hereof, the General Partner shall, on behalf of, and
at the expense of, the Partnership, have without limitation the right, power and
authority:
(1) to manage, control, invest, reinvest, acquire
by purchase, lease or otherwise, sell, contract to purchase or sell, grant,
obtain, or exercise options to purchase, options to sell or conversion rights,
assign, transfer, convey, deliver, endorse, exchange, pledge, mortgage, abandon,
improve, repair, maintain, insure, lease for any term and otherwise deal with
any and all property of whatsoever kind and nature, and wheresoever situated, in
furtherance of the purposes of the Partnership;
(2) to acquire, directly or indirectly,
interests in real estate of any kind and of any type, and any and all kinds of
interests therein, and to determine the manner in which title thereto is to be
held; to manage, insure against loss, protect and subdivide any of the real
estate, interests therein or parts thereof; to improve, develop or redevelop any
such real estate; to participate in the ownership and development of any
property; to dedicate for public use, to vacate any subdivisions or parts
thereof, to resubdivide, to contract to sell, to grant options to purchase or
lease, to sell on any terms; to convey, to mortgage, pledge or otherwise
encumber said property, or any part thereof; to lease said property or any part
thereof from time to time, upon any terms and for any period of time, and to
renew or extend leases, to amend, change or modify the terms and provisions of
any leases and to grant options to lease and options to renew leases and options
to purchase; to partition or to exchange said real property, or any part
thereof,
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for other real or personal property; to grant easements or charges of any kind;
to release, convey or assign any right, title or interest in or about or
easement appurtenant to said property or any part thereof; to construct and
reconstruct, remodel, alter, repair, add to or take from buildings on said
premises; to insure any Person having an interest in or responsibility for the
care, management or repair of such property; to direct the trustee of any land
trust to mortgage, lease, convey or contract to convey the real estate held in
such land trust or to execute and deliver deeds, mortgages, notes, and any and
all documents pertaining to the property subject to such land trust or in any
matter regarding such trust; to execute assignments of all or any part of the
beneficial interest in such land trust;
(3) to employ, engage or contract with or dismiss
from employment or engagement Persons to the extent deemed necessary by the
General Partner for the operation and management of the Partnership business,
including but not limited to, contractors, subcontractors, engineers,
architects, surveyors, mechanics, consultants, accountants, attorneys, insurance
brokers, real estate brokers and others;
(4) to enter into contracts on behalf of the
Partnership and to cause all Administrative Expenses to be paid;
(5) to borrow and lend money and make and obtain
loans and advances to or from any Person for Partnership purposes (including,
without limitation the making of loans to partners of any of the Property
Partnerships); to contract liabilities and obligations of every kind and nature
with or without security; and to repay, discharge, settle, adjust, compromise,
or liquidate any such loan, advance, obligation or liability;
(6) to grant security interests, mortgage,
assign, pledge, hypothecate, deposit, deliver, enter into sale and leaseback
arrangements or otherwise give as security or for sale or other disposition any
and all Partnership property, tangible or intangible, including, but not limited
to, personal property and real estate and interests; to sign, execute and
deliver any and all assignments, deeds, bills of sale and instruments in
writing; to enter into, make, execute, deliver and receive agreements,
undertakings and instruments of every kind and nature; and generally to do any
and all other acts and things incidental to any of the foregoing;
(7) to, acquire and enter into any contract of
insurance (including, without limitation, general partner liability and
partnership reimbursement insurance policies) which the General Partner may deem
necessary or appropriate;
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(8) to conduct any and all banking transactions
on behalf of the Partnership; to draw, sign, execute, accept, endorse,
guarantee, deliver, receive and pay any checks, drafts, bills of exchange,
acceptances, notes, obligations, undertakings and other instruments for or
relating to the payment of money in, into, or from any account in the
Partnership's name; to make deposits and withdraw the same and to negotiate or
discount commercial paper and acceptances;
(9) to demand, sue for, receive, and otherwise
take steps to collect all debts, rents, proceeds, interests, dividends, goods,
income from property, damages and all other property, to which the Partnership
may be entitled or which are or may become due the Partnership from any Person;
to commence, prosecute or enforce, or to defend, answer or oppose, contest and
abandon all legal proceedings in which the Partnership is or may hereafter be
interested; and to settle, compromise or submit to arbitration any claims,
disputes and matters which may arise between the Partnership and any other
Person and to grant an extension of time for the payment or satisfaction thereof
on any terms, with or without security;
(10) to acquire interests in and contribute
property to any limited or general partnerships, joint ventures, subsidiaries or
other entities as the General Partner deems desirable.
(11) to maintain the Partnership's books and
records; and
(12) to prepare and deliver, or cause to be
prepared and delivered by the Accountants, all financial and other reports with
respect to the operations of the Partnership, and preparation and filing of all
tax returns and reports.
Except as otherwise provided herein, to the extent the duties of the General
Partner require expenditures of funds to be paid to third parties, the General
Partner shall not have any obligations hereunder except to the extent that
Partnership funds are reasonably available to it for the performance of such
duties, and nothing herein contained shall be deemed to require the General
Partner, in its capacity as such, to expend its individual funds for payment to
third parties or to undertake any specific liability or ligation on behalf of
the Partnership.
(b) Notwithstanding the provisions of Section
7.1(a), the Partnership shall not take, or refrain from taking, any action
which, in the judgment of the General Partner, in its sole and absolute
discretion, (i) could adversely affect the ability of the General Partner to
continue to qualify as a REIT, (ii) could subject the General Partner to any
additional taxes under Section 857 or Section 4981 of the Code or other
potentially adverse consequences under the Code, or (iii) could
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violate any law or regulation of any governmental body or agency having
jurisdiction over the General Partner or its securities, unless such action (or
inaction) shall have been specifically consented to by the General Partner in
writing.
7.2 Specified Decisions. At any time that the Limited Partners
(other than the General Partner in its capacity as a Limited Partner) own in the
aggregate more than 10% of the issued and outstanding Partnership Interests, the
General Partner shall not, without the prior Consent of the Limited Partners,
authorize or cause the Partnership to amend or terminate this Agreement (other
than amendments which do not adversely affect any Limited Partner), make a
general assignment for the benefit of creditors, institute any proceeding for
bankruptcy or be dissolved or liquidated (collectively, the "Specified
Decisions") or, subject to Section 7.6 below, take title to any property other
than in the name of the Partnership or a subsidiary thereof.
7.3 Reimbursement of the General Partner.
(a) Except as provided in this Section 7.3 and
elsewhere in this Agreement (including the provisions of Article 6 regarding
distributions, payments and allocations to which it may be entitled), the
General Partner shall not be compensated for its services as general partner of
the Partnership.
(b) The General Partner shall be reimbursed on a
monthly basis, or such other basis as the General Partner may determine in its
sole and absolute discretion, for all expenses it incurs relating to the
ownership of interests in the Partnership and operation of, or for the benefit
of, the Partnership, including, without limitation, the Administrative Expenses.
The Limited Partners acknowledge that the General Partner's sole business is the
ownership of interests in and operation of the Partnership and that all of the
General Partner's expenses are incurred for the benefit of the Partnership. Such
reimbursements shall be in addition to any reimbursement to the General Partner
as a result of indemnification pursuant to Section 7.8 hereof.
(c) The General Partner shall also be reimbursed
for all expenses it incurs relating to the organization of the Partnership and
the General Partner, the initial public offering of REIT shares by the General
Partner, and any other issuance of additional Partnership Interests or REIT
shares pursuant to Section 4.2 hereof.
7.4 Outside Activities of the General Partner.
(a) The General Partner shall not directly or
indirectly enter into or conduct any business, other than in connection with the
ownership, acquisition and disposition of Partnership Interests as a General
Partner or Limited Partner and
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the management and operation of the business of the Partnership, and such
activities as are incidental thereto.
(b) The General Partner agrees that all
borrowings for the purpose of making distributions to its shareholders will be
incurred by the Partnership or one or more of the Property Partnerships and the
proceeds of such indebtedness will be included as Net Financing Proceeds
hereunder.
7.5 Contracts with Affiliates. The Partnership may lend or
contribute to its subsidiaries or other Persons in which it has an equity
investment, and such Persons may borrow funds from the Partnership, on terms and
conditions established in the sole and absolute discretion of the General
Partner. The foregoing authority shall not create any right or benefit in favor
of any Person. The Partnership may also engage in other transactions and enter
into contracts with Affiliates which are on terms fair and reasonable to the
Partnership and no less favorable to the Partnership than would be obtained from
unaffiliated third parties.
7.6 Title to Partnership Assets. Title to Partnership assets,
whether real, personal or mixed and whether tangible or intangible, shall be
deemed to be owned by the Partnership as an entity, and no Partner, individually
or collectively, shall have any ownership interest in such Partnership assets or
any portion thereof. Title to any or all of the Partnership assets may be held
in the name of the Partnership, the General Partner or one or more nominees, as
the General Partner may determine, including Affiliates of the General Partner.
The General Partner hereby acknowledges and confirms that any partnership assets
for which legal title is held in the name of the General Partner or any nominee
or Affiliate of the General Partner shall be held by the General Partner for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the General Partner shall use its best
efforts to cause beneficial and record title to such assets to be vested in the
Partnership as soon as reasonably practicable. All Partnership assets shall be
recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is
held.
7.7 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, any Person dealing with the Partnership shall be
entitled to assume that the General Partner has full power and authority to
encumber, sell or otherwise use in any manner any and all assets of the
Partnership and to enter into any contracts on behalf of the Partnership, and
such Person shall be entitled to deal with the General Partner as if it were the
Partnership's sole party in interest, both legally and beneficially. Each
Limited Partner hereby waives any and all defenses or other remedies which may
be available against such
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Person to contest, negate or disaffirm any action of the General Partner in
connection with any such dealing. In no event shall any Person dealing with the
General Partner or its representatives be obligated to ascertain that the terms
of this Agreement have been complied with or to inquire into the necessity or
expedience of any act or action of the General Partner or its representatives.
Each and every certificate, document or other instrument executed on behalf of
the Partnership by the General Partner shall be conclusive evidence in favor of
any and every Person relying thereon or claiming thereunder that (i) at the time
of the execution and delivery of such certificate, document or instrument, this
Agreement was in full force and effect, (ii) the Person executing and delivering
such certificate, document or instrument was duly authorized and empowered to do
so for and on behalf of the Partnership and (iii) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
7.8 Indemnification by Partnership.
(a) The Partnership shall indemnify an Indemnitee
from and against any and all losses, claims, damages, liabilities, joint or
several, expenses (including legal fees and expenses), judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative,
that relate to the operations of the Partnership as set forth in this Agreement
in which any Indemnitee may be involved, or is threatened to be involved, as a
party or otherwise, unless it is established that: (i) the act or omission of
the Indemnitee was material to the matter giving rise to the proceeding and
either was committed in bad faith or was the result of active and deliberate
dishonesty; (ii) the Indemnitee actually received an improper personal benefit
in money, property or services; or (iii) in the case of any criminal proceeding,
the Indemnitee had reasonable cause to believe that the act or omission was
unlawful. The termination of any proceeding by judgment, order or settlement
does not create a presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 7.8(a). Any indemnification
pursuant to this Section 7.8 shall be made only out of the assets of the
Partnership and no Partner shall have any personal liability therefor.
(b) Reasonable expenses incurred by an Indemnitee
who is a party to a proceeding may be paid or reimbursed by the Partnership in
advance of the final disposition of the proceeding upon receipt by the
Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee's
good faith belief that the standard of conduct necessary for indemnification by
the Partnership, as authorized in this Section 7.8, has been met, and (ii) a
written undertaking by or on behalf of the Indemnitee to
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repay the amount paid or reimbursed if it shall ultimately be determined that
such standard of conduct has not been met.
(c) The indemnification provided by this Section
7.8 shall be in addition to any other rights to which an Indemnitee or any other
Person may be entitled under any agreement, as a matter of law or otherwise, and
shall continue as to an Indemnitee who has ceased to serve in such capacity.
(d) The Partnership may purchase and maintain
insurance, on behalf of the Indemnitees and such other Persons as the General
Partner shall determine, against any liability that may be asserted against or
expenses that may be incurred by such Persons in connection with the
Partnership's activities, regardless of whether the Partnership would have the
power to indemnify any such Person against such liability under the provisions
of this Agreement.
(e) For purposes of this Section 7.8, the
Partnership shall be deemed to have requested an Indemnitee to serve as
fiduciary of an employee benefit plan whenever the performance by it of its
duties to the Partnership also imposes duties on, or otherwise involves services
by, it to the plan or participants or beneficiaries of the plan; excise taxes
assessed on an Indemnitee with respect to an employee benefit plan pursuant to
applicable law shall constitute fines within the meaning of this Section 7.8;
and actions taken or omitted by the Indemnitee with respect to an employee
benefit plan in the performance of its duties for a purpose reasonably believed
by it to be in the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the best interests
of the Partnership.
(f) An Indemnitee shall not be denied
indemnification in whole or in part under this Section 7.8 solely because the
Indemnitee had an interest in the transaction with respect to which the
indemnification applies.
(g) The provisions of this Section 7.8 are for
the benefit of the Indemnitees, their heirs, successors, assigns personal
representatives and administrators, and shall not be deemed to create any rights
for the benefit of any other Persons.
7.9 Liability of the General Partner
(a) Notwithstanding anything to the contrary set
forth in this Agreement, the General Partner shall not be liable for monetary or
other damages to the Partnership, any of the Partners or any assignee of any
interest of any Partner for losses sustained or liabilities incurred as a result
of errors in judgment or of any act or omission if the General Partner acted in
good faith and was not guilty of any active and deliberate dishonesty with
respect thereto.
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(b) The Limited Partners expressly acknowledge
that the General Partner is acting on behalf of the Partnership and the General
Partner's shareholders collectively, that the General Partner is under no
obligation to consider the separate interests of the Limited Partners
(including, without limitation, the tax consequences to Limited Partners or any
assignees thereof) in deciding whether to cause the Partnership to take (or
decline to take) any actions, and that the General Partner shall not be liable
for monetary damages for losses sustained, liabilities incurred, or benefits not
derived by Limited Partners in connection with such decisions, provided that the
General Partner acted in good faith with respect thereto.
(c) Subject to its obligations and duties as
General Partner set forth in Section 7.1 hereof, the General Partner may
exercise any of the powers granted to it by this Agreement and performing of the
duties imposed upon it hereunder either directly or by or through its agents.
The General Partner shall not be responsible for any misconduct or negligence on
the part of any such agent appointed by it in good faith.
(d) The General Partner shall not be deemed to
have any limitations or obligations, or be subject to any restrictions, of a
partner of a general partnership, if it otherwise would not have such
limitations or obligations or be subject to such restrictions under the terms of
the Act, any other applicable law and this Agreement.
(e) Any amendment, modification or repeal of this
Section 7.9 or any provision hereof shall be prospective only and shall not in
any way affect the limitations on the General Partner's liability to the
Partnership and the Limited Partners under this Section 7.9 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
7.10 Other Matters Concerning the General Partner
(a) The General Partner may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b) The General Partner may consult with legal
counsel, accountants, appraisers, management consultants, investment bankers and
other consultants and advisers selected by it, and any act taken or omitted to
be taken in reliance upon the opinion of such Persons as to matters which such
General Partner reasonably believes to be within such Person's professional or
expert competence shall be conclusively presumed to have been
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done or omitted in good faith and in accordance with such opinion.
(c) The General Partner shall have the right, in
respect of any of its powers or obligations hereunder, to act through any of its
duly authorized officers and any attorney or attorneys-in-fact duly appointed by
the General Partner. Each such attorney shall, to the extent provided by the
General Partner in the power of attorney, have full power and authority to do
and perform all and every act and duty which is permitted or required to be done
by the General Partner hereunder.
(d) Notwithstanding any other provisions of this
Agreement or the Act, any action of the General Partner on behalf of the
Partnership or any decision of the General Partner to refrain from acting on
behalf of the Partnership, undertaken in the good faith belief that such action
or omission is necessary or advisable in order (i) to protect or further the
ability of the General Partner to continue to qualify as a REIT or (ii) to avoid
the General Partner incurring any taxes under Section 857 or Section 4981 of the
Code, is expressly authorized under this Agreement and is deemed approved by all
of the Limited Partners.
7.11 Operation in Accordance with REIT Requirements. The
Partners acknowledge and agree that the Partnership shall be operated in a
manner that will enable the General Partner to (a) satisfy the REIT Requirements
and (b) avoid the imposition of any federal income or excise tax liability. The
Partnership shall avoid taking any action, or permitting any Property
Partnership to take any action, which would result in the General Partner
ceasing to satisfy the REIT Requirements or would result in the imposition of
any federal income or excise tax liability on the General Partner. The
determination as to whether the Partnership has operated in the manner
prescribed in this Section 7.11 shall be made without regard to any action or
inaction of the General Partner with respect to distributions and the timing
thereof.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND WINDING-UP
8.1 Accounting. In the event of the dissolution, liquidation
and winding-up of the Partnership, a proper accounting shall be made of the
Capital Account of each Partner and of the Net Income or Net Loss of the
Partnership from the date of the last previous accounting to the date of
dissolution.
8.2 Distribution on Dissolution. In the event of the
dissolution and liquidation of the Partnership for any reason, the assets of the
Partnership shall be liquidated and the net proceeds therefrom shall be
distributed in the following rank and order:
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(a) Payment of creditors of the Partnership in
the order of priority as provided by law;
(b) Establishment of reserves as provided by the
General Partner to provide for contingent and other Partnership
liabilities, if any; and
(c) To the Partners in accordance with the
positive balances in their Capital Accounts after giving effect to all
contributions, distributions and allocations for all periods, other than
distributions under this Section 8.2(c).
Whenever the Liquidating Trustee reasonably determines that any reserves
established pursuant to paragraph (b) above are in excess of the reasonable
requirements of the Partnership, the amount determined to be excess shall be
distributed to the Partners in accordance with the provisions of this Section
8.2.
8.3 Timing Requirements.
(a) In the event that the Partnership is
"liquidated" within the meaning of Section 1.704-1(b)(2)(ii) (g) of the
Regulations, any and all distributions to the Partners pursuant to Section
8.2(c) hereof shall be made no later than the later to occur of (i) the last day
of the taxable year of the Partnership in which such liquidation occurs or (ii)
ninety (90) days after the date of such liquidation.
(b) Notwithstanding the provisions of Section 8.2
hereof which require liquidation of the assets of the Partnership, but subject
to the order of priorities set forth therein, if prior to or upon dissolution of
the Partnership the Liquidating Trustee determines that an immediate sale of
part or all of the Partnership's assets would be impractical or would cause
undue loss to the Partners, the Liquidating Trustee may, in its sole and
absolute discretion, defer for a reasonable time the liquidation of any assets
except those necessary to satisfy liabilities of the Partnership (including to
those Partners which are creditors of the Partnership) and/or distribute to the
Partners, in lieu of cash, as tenants in common and in accordance with the
provisions of Section 8.2 hereof, undivided interests in such Partnership assets
as the Liquidating Trustee deems not suitable for liquidation. Any such
distributions in kind shall be made only if, in the good faith judgment of the
Liquidating Trustee, such distributions in kind are in the best interest of the
Partners, and shall be subject to such conditions relating to the disposition
and management of such properties as the Liquidating Trustee deems reasonable
and equitable and to any agreements governing the operation of such properties
at such time. The Liquidating Trustee shall determine the fair market value of
any property distributed in kind using such reasonable method of valuation as it
may adopt.
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8.4 Documentation of Liquidation. Upon the completion of the
dissolution and liquidation of the Partnership, the Partnership shall terminate
and the Liquidating Trustee shall have the authority to execute and record any
and all documents or instruments required to effect the dissolution, liquidation
and termination of the Partnership.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS
9.1 General Partner Transfer. The General Partner shall not
withdraw from the Partnership and shall not sell, assign, pledge, encumber or
otherwise dispose of all or any portion of its interest in the Partnership
without the Consent of the Limited Partners at any time that the Limited
Partners (other than the General Partner in its capacity as a Limited Partner)
own in the aggregate more than 10% of the issued and outstanding Partnership
Interests. Upon any transfer of a Partnership Interest in accordance with the
provisions of this Section 9.1, the transferee General Partner shall become
vested with the powers and rights of the transferor General Partner, and shall
be liable for all obligations and responsible for all duties of the General
Partner, once such transferee has executed such instruments as may be necessary
to effectuate such admission and to confirm the agreement of such transferee to
be bound by all the terms and provisions of this Agreement with respect to the
Partnership Interest so acquired. It is a condition to any transfer otherwise
permitted hereunder that the transferee assumes by operation of law or express
agreement all of the obligations of the transferor General Partner under this
Agreement with respect to such transferred Partnership Interest and no such
transfer (other than pursuant to a statutory merger or consolidation wherein all
obligations and liabilities of the transferor General Partner are assumed by a
successor corporation by operation of law) shall relieve the transferor General
Partner of its obligations under this Agreement without the Consent of the
Limited Partners, in their reasonable discretion. In the event the General
Partner withdraws or retires from the Partnership, in violation of this
Agreement or otherwise, or dissolves, terminates or upon the Bankruptcy of the
General Partner, the Partners holding a majority of the Percentage Interests
then held by all Partners may, within 120 days after such withdrawal,
dissolution, retirement, termination or Bankruptcy (the "Designated Events"),
elect to continue the Partnership business by selecting a substitute general
partner, which substitute general partner accepts such selection and agrees to
serve as general partner.
9.2 Transfers by Limited Partners.
(a) Subject to the provisions of Sections 9.2(b)
and 9.2(d), no Limited Partner shall have the right to transfer
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all or any portion of its Partnership Interest prior to June 23, 1995.
Thereafter, no such transfer may be made of any of such Limited Partner's rights
as a Limited Partner without the prior written consent of the General Partner,
which consent may be given or withheld by the General Partner in its sole and
absolute discretion. Notwithstanding the foregoing, no Rouse Senior Executive
may transfer any Partnership Interest, or any rights as a Limited Partner, or
any Shares prior to June 23, 1997 other than the following: (i) after June 23,
1995 such person may transfer up to 20% of the aggregate Partnership Interests
and Shares issued to such person on or after June 23, 1994, and (ii) after June
23, 1996 such person may transfer up to 50% of the aggregate Partnership
Interests and Shares issued to such person on or after June 23, 1994. In
addition to the restrictions on transfer set forth in this Section 9.2, any
transfer of Partnership Interests or Shares by a Special Indemnitor shall be
subject to the provisions of Section 13.3(a) hereof. Any purported transfer of a
Partnership Interest or Share by a Limited Partner in violation of this Section
9.2(a) shall be void ab initio and shall not be given effect for any purpose by
the Partnership.
(b) Notwithstanding the provisions of Section
9.2(a) (but subject to the provisions of Section 9.3) a Limited Partner, whether
or not a Rouse Senior Executive or a Special Indemnitor may transfer, with or
without the consent of the General Partner all or a portion of its Partnership
Interests to (i) a member of such transferor's Immediate Family, or a trust for
the benefit of a member of such transferor's Immediate Family and (ii) if such
Limited Partner is a trust, to one or more beneficiaries thereof; provided, that
any Partnership Interest permitted to be transferred pursuant to this Section
9.2(b) shall remain subject to all provisions of this Agreement, including,
without limitation, Section 9.2 and Article XIII hereof.
(c) No Limited Partner shall have the right to
substitute a transferee as a Limited Partner in his place. The General Partner
shall, however, have the right to consent to the admission of a transferee of
the interest of a Limited Partner pursuant to this Section 9.2 as a substituted
limited partner (as such term is used in the Act), which consent may be given or
withheld by the General Partner in its sole and absolute discretion. The General
Partner's failure or refusal to permit a transferee of any such interests to
become a substituted limited partner shall not give rise to any cause of action
against the Partnership or any Partner. A transferee who has been admitted as a
substituted limited partner in accordance with this Article IX shall have all
the rights and powers and be subject to all the restrictions and liabilities of
a Limited Partner under this Agreement.
(d) If the General Partner, in its sole and
absolute discretion, does not consent to the admission of any
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permitted transferee under Sections 9.2(a) or 9.2(b), as a substituted limited
partner under Section 9.2(c), such transferee shall be considered an assignee
for purposes of this Agreement. An assignee shall be deemed to have had assigned
to it, and shall be entitled to receive, distributions from the Partnership and
the share of Net Income, Net Losses, and any other items of income, gain, loss,
deduction and credit of the Partnership attributable to the Partnership
Interests assigned to such transferee and shall have all of the Rights referred
to in Section 11.1 of this Agreement attributable to such Partnership Interests,
but shall not be deemed to be a holder of Partnership Interests for any other
purpose under this Agreement, and shall not be entitled to vote such Partnership
Interests in any matter presented to the Limited Partners for a vote (such
Partnership Interests being deemed to have been voted on such matter in the same
proportion as all other Partnership Interests held by Limited Partners are
voted). In the event any such transferee desires to make a further assignment of
any such Partnership Interests, such transferee shall be subject to all the
provisions of this Article IX to the same extent and in the same manner as any
Limited Partner desiring to make an assignment of Partnership Interests.
(e) The Limited Partners acknowledge that the
Partnership Interests have not been registered under any federal or state
securities laws and, as a result thereof, they may not be sold or otherwise
transferred, except in compliance with such laws. Notwithstanding anything to
the contrary contained in this Agreement, no Partnership Interest may be sold or
otherwise transferred unless such transfer is exempt from registration under any
applicable securities laws or such transfer is registered under such laws, it
being acknowledged that the Partnership has no obligation to take any action
which would cause any such Interests to be registered.
9.3 Certain Restrictions on Transfer. In addition to any other
restrictions on transfer herein contained, in no event may any transfer of a
Partnership Interest by any Partner be made (i) to any person or entity who
lacks the legal right, power or capacity to own a Partnership Interest; (ii) in
the event such transfer would cause the General Partner to cease to comply with
the REIT Requirements, (iii) if such transfer would cause a termination of the
Partnership for federal income tax purposes, (iv) if such transfer would, in the
opinion of counsel to the Partnership, cause the Partnership to cease to be
classified as a Partnership for Federal income tax purposes, (v) if such
transfer is effectuated through an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Section 7704(b) of the Code, (vi) if such transfer would cause the Partnership
to become, with respect to any employee benefit plan subject to Title l of
ERISA, a "party-in-interest" (as defined in Section 3(14) of ERISA) or a
"disqualified person" (as defined in section 4975(c) of the
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Code), (vii) if such transfer would, in the opinion of counsel to the
Partnership, cause any portion of the assets of the Partnership to constitute
assets of any employee benefit plan pursuant to Department of Labor Regulations
Section 2510.2-101 or (viii) to a lender to the Partnership or any Person who is
related (within the meaning of Section 1.752-4(b) of the Regulations) to any
lender to the Partnership whose loan constitutes a Nonrecourse Liability, unless
in the opinion of counsel to the Partnership, such transfer and ownership of the
Partnership Interest by the lender (or related person) will not have adverse
federal income tax consequence to the Partners. In addition, the following
Persons admitted to the Partnership as Limited Partners pursuant to that certain
Fourth Amendment to Agreement of Limited Partnership dated as of March 21, 1997,
shall in no event be entitled to transfer all or any portion of their
Partnership Interests to the General Partner: Stewart R. Stender, Robert C. Lux,
NWBC Associates, Inc., 330 Associates, Inc., and APEX Asset Management
Corporation.
9.4 Effective Dates of Transfers.
(a) Transfers pursuant to this Article IX may
only be made as of the first day of a fiscal quarter of the Partnership, unless
the General Partner otherwise agrees. The General Partner hereby agrees that,
with respect to Persons admitted to the Partnership as Limited Partners under
the TLC Contribution Agreement, transfers pursuant to the conversion rights of
such Persons as set forth in Section 11.1 of this Agreement or pursuant to that
certain Contributors Rights Agreement dated as of May 14, 1997, shall not be
limited to the first day of a fiscal quarter.
(b) If any Partnership Interest is transferred or
assigned in compliance with the provisions of this Article IX, or converted or
sold for Shares or cash pursuant to Section 11.1 on any day other than the first
day of a calendar year, then Net Income, Net Loss, each item thereof and all
other items attributable to such Partnership Interest for such year shall be
allocated to the transferor Partner, or the converted or selling Partner, as the
case may be, and the transferee Partner, by taking into account their varying
interests during such year in accordance with Section 706(d) of the Code, using
the interim closing of the books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which a transfer or
assignment occurs shall be allocated to the transferee Partner. All
distributions of Net Operating Cash Flow attributable to such Partnership
Interest with respect to which the Partnership Record Date is before the date of
such transfer, assignment, conversion or sale shall be made to the transferring,
assigning, converting or selling Partner, and all distributions of Net Operating
Cash Flow thereafter attributable to such Partnership Interest shall be made to
the transferee Partner. Furthermore, the interim closing of the books method
shall be
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used to take into account the acquisition by the General Partner on the date
hereof of its Partnership Interest and the allocation to the General Partner of
the Net Income, Net Loss and each item thereof and all items attributable to
such Partnership Interest accruing on and after this date.
9.5 Transfer.
(a) The term "transfer", when used in this
Article IX with respect to a Partnership Interest, shall be deemed to refer to a
transaction by which a Partner purports to assign its Partnership Interest or
any portion thereof to another Person, and includes a sale, assignment, gift,
pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition
by law or otherwise; provided however, that the term "transfer", when used in
this Article IX does not (except when such term is used in Section 9.4) include
any conversion of Partnership Interests of a Limited Partner or acquisition of
Partnership Interests from a Limited Partner by the General Partner or the
Partnership pursuant to Section 11.1.
(b) No Partnership Interest shall be transferred,
in whole or in part, except in accordance with the terms and conditions set
forth in this Article IX. Any transfer or purported transfer of a Partnership
Interest not made in accordance with this Article IX shall be null and void.
ARTICLE X
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
10.1 No Participation in Management. No Limited Partner, in its
capacity as such, shall take part in the management of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for or otherwise bind the Partnership. Any rights expressly
granted to the Limited Partners in this Agreement shall not be deemed to be
rights relating to the management of the Partnership's business.
10.2 Bankruptcy of a Limited Partner. The Bankruptcy of any
Limited Partner shall not cause a dissolution of the Partnership, but the rights
of such Limited Partner to share in the Net Profits or Net Losses of the
Partnership and to receive distributions of Partnership funds shall, on the
happening of such event, devolve on its successors or assigns, subject to the
terms and conditions of this Agreement, and the Partnership shall continue as a
limited partnership. However, in no event shall such assignee(s) become a
substituted Limited Partner except in accordance with Article IX hereof.
10.3 No Withdrawal. No Limited Partner may withdraw
its Capital Contribution from the Partnership without the prior
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written consent of the General Partner, other than as expressly provided in this
Agreement.
10.4 Conflicts. The Partners recognize that the Limited Partners
and their Affiliates have or may have other business interests, activities and
investments, some of which may be in conflict or competition with the business
of the Partnership, and that, with respect to the Rouse Principals, subject to
the provisions of those certain employment agreements between the respective
Rouse Principals and the General Partner dated June 23, 1994, such Persons are
entitled to carry on such other business interests, activities and investments.
The Limited Partners and their Affiliates may engage in or possess an interest
in any other business or venture of any kind, independently or with others, on
their own behalf or on behalf of other entities with which they are affiliated
or associated, and such persons may engage in any activities, whether or not
competitive with the Partnership, without any obligation to offer any interest
in such activities to the Partnership or to any Partner. Except, with respect to
the activities of the Rouse Principals, as set forth in the employment
agreements between the respective Rouse Principals and the General Partner dated
June 23, 1994 neither the Partnership nor any Partner shall have any right, by
virtue of this Agreement, in or to such activities, or the income or profits
derived therefrom, and the pursuit of such activities, even if competitive with
the business of the Partnership, shall not be deemed wrongful or improper.
Notwithstanding the foregoing, the provisions of this Section 10.4 shall not
negate or impair any other written agreement between one or more of the Limited
Partners and the General Partner or the Partnership or any duties which a
Limited Partner may have in such Limited Partner's capacity as an officer or
trustee of the General Partner.
10.5 Provision of Information.
(a) With respect to any information required to
be provided to the Limited Partners pursuant to Section 17-305 (or any successor
thereto) of the Act: (i) the cost of preparing or providing any such information
(including, without limitation, fees paid to any person or entity in connection
therewith) shall be paid by the requesting Partner and in no event shall such
information be required to be given to the requesting Partner until such payment
has been made to the Partnership; (ii) in no event shall any financial
statements of the Partnership be required to be provided except for such
statements as have already been prepared or are otherwise required to be
provided to the Limited Partners under this Agreement and in no event shall any
statements which have been prepared be required to be audited, reviewed or
otherwise examined by a certified public accountant, if the statements are not
otherwise required to be so audited, reviewed or examined pursuant to the
provisions of this Agreement; and (iii) in no event shall such information be
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required to be furnished until 45 days after such request and unless the
information is already in the possession of the Partnership.
(b) The Partnership shall notify any Limited
Partner, on request, of the then current Conversion Factor (as that term is used
in Exhibit "D") or any change made to the Conversion Factor.
(c) Notwithstanding any other provision of this
Section 10.5, the General Partner may keep confidential from the Limited
Partners, for such period of time as the General Partner determines in its sole
and absolute discretion to be reasonable, any information that (i) the General
Partner reasonably believes to be in the nature of trade secrets or other
information the disclosure of which the General Partner in good faith believes
is not in the best interests of the Partnership or could damage the Partnership
or its business or (ii) the Partnership is required by law or by agreements with
an unaffiliated third party to keep confidential.
10.6 Limited Partner Representatives. Willard G. Rouse III and
Joseph P. Denny are hereby appointed as the Limited Partner Representatives. A
Majority-In-Interest of the Limited Partners shall have the right, at any time,
within their sole discretion, to replace any of the Limited Partner
Representatives, to appoint a temporary substitute to act for any Limited
Partner Representative unable to act, or to vest in only one of the Limited
Partner Representatives the sole power to exercise rights of the Limited Partner
Representatives hereunder. The Limited Partner Representatives shall be
appointed by the Limited Partners in writing, a copy of which shall be delivered
to the General Partner. Any appointments of Limited Partner Representatives made
hereunder shall remain effective until rescinded in a writing delivered to the
General Partner and the General Partner shall have the right and authority to
rely (and shall be fully protected in so doing) on the actions taken and
directions given by such Limited Partner Representatives without any further
evidence of their authority or further action by the Limited Partners.
10.7 Power of Attorney.
(a) Each Limited Partner constitutes and appoints
the General Partner, any Liquidating Trustee, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to: execute, swear
to, acknowledge, deliver, file and record in the appropriate public offices (i)
all certificates, documents and other instruments (including, without
limitation, this Agreement and the Certificate and all amendments or
restatements thereof) that the
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General Partner or the Liquidating Trustee deems appropriate or necessary to
form, qualify or continue the existence or qualification of the Partnership as a
limited partnership (or a partnership in which the limited partners have limited
liability) in the Commonwealth of Pennsylvania and in all other jurisdictions in
which the Partnership may conduct business or own property; (ii) all instruments
that the General Partner deems appropriate or necessary to reflect any
amendment, change, modification or restatement of this Agreement in accordance
with its terms; (iii) all conveyances and other instruments or documents that
the General Partner deems appropriate or necessary to reflect the dissolution
and liquidation of the Partnership pursuant to the terms of this Agreement,
including, without limitation, a certificate of cancellation; and (iv) all
instruments relating to the admission, withdrawal, removal or substitution of
any Partner pursuant to the provisions of this Agreement, or the Capital
Contribution of any Partner.
(b) The foregoing power of attorney is
irrevocable and a power coupled with an interest, in recognition of the fact
that each of the Partners will be relying upon the power of the General Partner
to act as contemplated by this Agreement in any filing or other action by it on
behalf of the Partnership, and it shall survive the death of incompetency of a
Limited Partner to the effect and extent permitted by law and the transfer of
all or any portion of such Limited Partner's Partnership Interests and shall
extend to such Limited Partner's heirs, successors, assigns and personal
representatives.
(c) Nothing contained in this Section 10.7 shall
be construed as authorizing the General Partner to amend this Agreement except
in accordance with Article XIV hereof.
ARTICLE XI
GRANT OF CERTAIN RIGHTS TO LIMITED PARTNERS
11.1 Grant of Rights. The General Partner does hereby grant to
the Limited Partners, and the Limited Partners do hereby accept the right, but
not the obligation (hereinafter such right sometimes referred to as the
"Rights"), to convert all or a portion of their Partnership Interests into
Shares, and/or to sell at any time on or after June 23, 1995, the remainder (or
any part thereof) of their Partnership Interests to the General Partner (or its
designee), at any time or from time to time after June 23, 1995 on the terms and
subject to the conditions and restrictions contained in Exhibit D hereto;
provided, however, (a) that Willard G. Rouse III, David C. Hammers, George F.
Congdon and Anthony Hayden may convert, prior to June 23, 1994, such portion of
their respective Partnership Interests such that they may collectively receive
an aggregate of 155,548 Shares; and (b) that the Partnership Interests issued to
Stewart R. Stender, Robert C. Lux, NWBC Associates, Inc., 330 Associates, Inc.,
and
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APEX Asset Management Corporation shall not be exchangeable or convertible into
Shares until after March 21, 1998. The Rights granted hereunder may be exercised
by any one or more of the Limited Partners, on the terms and subject to the
conditions and restrictions contained in Exhibit D hereto.
ARTICLE XII
REPRESENTATION AND WARRANTY OF ROUSE PRINCIPALS
12.1 Representation and Warranty of Rouse Principals. Each of
the Rouse Principals represents and warrants to the General Partner that, as of
the date the Registration Statement was declared effective by the Securities and
Exchange Commission and as of the date hereof, the Registration Statement did
not and does not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, on the date of filing thereof
with the Securities and Exchange Commission and on the date hereof did not and
does 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, in light of the circumstances under which they were made, not
misleading; provided that the foregoing representation shall not be applicable
to statements in or omissions from the Registration Statement and the Prospectus
in reliance upon, and in conformity with, written information furnished to the
General Partner or the Partnership by any underwriter named in the Underwriting
Agreement, specifically for use in the preparation of the Registration Statement
or Prospectus.
ARTICLE XIII
INDEMNIFICATION AND SECURITY INTEREST
13.1 General Indemnification. Subject to the terms of Section
13.9 below, the Limited Partners agree to indemnify and hold harmless the
General Partner, the Partnership, each subsidiary of the General Partner or the
Partnership, and any of their officers, directors, trustees, employees, agents
or other affiliates (each, an "Indemnified Party" and collectively, the
"Indemnified Parties") from and against all demands, claims, actions or causes
of action, assessments, losses, fines, penalties, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses of counsel chosen by the Indemnified Parties and costs of litigation
and reasonable fees and expenses of accountants chosen by the Indemnified
Parties) and charges sustained or incurred by any of the Indemnified Parties as
a result of or arising out of (a) any inaccuracy in or breach of representation
or warranty of any of the Limited Partners in this Agreement, any contribution
agreement to which such Limited Partner is a party, any
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assignment or other agreement to which such Limited Partner is a party
transferring assets or property (or interests therein), or in any other
agreement to which such Limited Partner is a party with respect to the
conveyance, assignment, contribution or other transfer of the Properties (or
interests therein), assets, agreements, rights or other interests conveyed,
assigned, contributed or otherwise transferred to the Partnership or any
subsidiary of the Partnership; or (b) any inaccuracy in or breach of a
representation or warranty, or failure to perform any obligations of, of the
General Partner or the Partnership in the Underwriting Agreement; provided that,
no claim for indemnity may be maintained hereunder unless an Indemnified Party
shall have delivered a written notice identifying such claims to the Limited
Partners on or before the first anniversary of the date hereof.
13.2 Environmental Indemnities. In addition to their indemnity
obligations as Limited Partners pursuant to Section 13.1 above, and subject to
the limitations set forth in 13.4(b) below, with respect to (A) the Property
located at 1180 Church Road, Upper Gwynedd Township, Pennsylvania ("1180
Church"), and (B) the 32 Properties identified on Exhibit E hereto located in
the Great Valley Corporate Center in Malvern, Pennsylvania (the "Malvern
Properties"), Willard Rouse, George Congdon, Joseph Denny and David C. Hammers
(the "Special Indemnitors") agree to indemnify and hold harmless the Indemnified
Parties from and against all demands, claims, actions or causes of action,
assessments, losses, fines, penalties, damages, liabilities, costs and expenses
(including without limitation, reasonable attorneys' fees and expenses of
counsel chosen by the Indemnified Parties and costs of litigation and reasonable
fees and expenses of accountants chosen by the Indemnified Parties) and charges
sustained or incurred by the Partnership or the General partner or any of their
subsidiaries as a result of or arising out of any matter, condition or act at
1180 Church or at the Malvern Properties involving any Environmental Laws,
Environmental Claim, or Hazardous Materials (each as defined in the Contribution
Agreement) which matter, condition or act existed on or arose prior to the date
of the Agreement (whether or not disclosed in the environmental reports set
forth as exhibits to the Contribution Agreement or as described in the
Prospectus or otherwise known by any of the Special Indemnitors); provided, that
no claim for indemnity may be maintained pursuant to this Section 13.2 (X) with
respect to 1180 Church, unless such Indemnified Party shall have delivered a
written notice identifying such claim to the Special Indemnitors on or before
the tenth anniversary of the date hereof or (Y) with respect to the Malvern
Properties, unless such Indemnified Party shall have delivered a written notice
identifying such claim to the Special Indemnitors on or before the fifth
anniversary of the date hereof.
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<PAGE> 48
13.3 Indemnity Collateral.
(a) Recourse for the indemnity obligation of the
Limited Partners set forth in Section 13.1 above shall be limited to the
Indemnity Collateral (as hereinafter defined). Indemnity Collateral shall mean
with respect to any Limited Partner, (i) the Partnership Interests and Shares
acquired by the Limited Partner in connection with the formation of the General
Partner as a REIT and the Offering; (ii) any Shares received by the Limited
Partners as a result of the exchange of Partnership Interests for Shares; and
(iii) distributions, share splits or other securities received with respect to
the Shares or Partnership Interests described in clauses (i) and (ii) above.
(b) Recourse for the indemnity obligation of the
Special Indemnitors set forth in Section 13.2 above shall after June 23, 1995 be
limited to the Special Indemnity Collateral (as hereinafter defined), (A) with
respect to 1180 Church, through the tenth anniversary of the date hereof and (B)
with respect to the Malvern Properties, through the fifth anniversary of the
date hereof. Special Indemnity Collateral shall mean (X) with respect to 1180
Church, Indemnity Collateral of the Special Indemnitors in an aggregate amount
equal to ten percent (10%) of the total Indemnity Collateral of all the Limited
Partners and (Y) with respect to the Malvern Properties, Indemnity Collateral of
the Special Indemnitors in an amount having a value of $6,000,000 (based on an
initial public offering price of $20.00 per share issued by the REIT pursuant to
the Registration Statement) calculated solely as of the date hereof. The
obligations of the Special Indemnitors with respect to 1180 Church are
independent of their obligations with respect to the Malvern Properties and vice
versa. No reduction in the amount of the Special Indemnity Collateral to satisfy
the obligations of the Special Indemnitors with respect to 1180 Church will
reduce the Special Indemnity Collateral available to satisfy the obligations of
the Special Indemnitors with respect to the Malvern Properties and no reduction
in the amount of the Special Indemnity Collateral to satisfy the obligations of
the Special Indemnitors with respect to the Malvern Properties will reduce the
Special Indemnity Collateral available to satisfy the obligations of the Special
Indemnitors with respect to 1180 Church.
13.4 Security Interest for Indemnification Obligations.
(a) With respect to the indemnity obligations of
the Limited Partners set forth under Section 13.1 hereof, and of the Special
Indemnitors set forth under Section 13.2 hereof, the Limited Partners and the
Special Indemnitors hereby grant, subject to the provisions of Section 13.4(d),
hereof to the General Partner a lien upon and a continuing security interest in,
the Indemnity Collateral, and in the case of the Special Indemnitors, the
Special Indemnity Collateral, which shall be security for the indemnity
obligations of the Limited Partners
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<PAGE> 49
and the Special Indemnitors, respectively, under this Article XIII. With the
exception of transfers to a transferor's Immediate Family pursuant to Section
9.2(b) which are made expressly subject to the liens and security interests
created hereby, no transfer may be made by the Limited Partners or the Special
Indemnitors of their Partnership Interests or Shares that are subject to the
liens and security interests created hereby until and unless such liens and
security interests are released in accordance with the provisions of Section
13.4(e) hereby; provided, however, that (i) after June 23, 1995, Partnership
Interests and Shares owned by the Limited Partners, which Partnership Interests
and Shares are subject to the lien and security interest granted under this
Section 13.4(a), other than Partnership Interests and Shares that constitute the
Special Indemnity Collateral, may be transferred in accordance with this
Agreement free and clear of such lien and security interest except in the event
that a claim for indemnity has been made in accordance with this Article XIII
and has not been resolved and (ii) Partnership Interests and Shares constituting
the Special Indemnity Collateral may be transferred in accordance with this
Agreement free and clear of such lien and security interest with respect to 1180
Church after June 23, 2004, and with respect to Malvern Properties after June
23, 1999, except in the event that a claim for indemnity under Section 13.2
hereof has been made in accordance with this Article XIII and has not been
resolved.
(b) The Limited Partners and the Special
Indemnitors shall have, on or before the date hereof, (i) delivered to the
General Partner certificates representing all of the Shares in such manner and
accompanied by such instruments, including stock transfer powers duly endorsed
in blank, as shall be necessary to grant the General Partner a fully perfected
first priority security interest in such Shares and in any Shares that may,
after June 23, 1994, be issued to the Limited Partners or the Special
Indemnitors by share dividend, split or similar distribution and (ii) prepared
and filed UCC financing statements and such other documents and have taken other
action necessary to grant the General Partner a fully perfected first priority
security interest in all of their respective Partnership Interests. In the event
the Limited Partners or the Special Indemnitors are determined to have an
indemnification obligation pursuant to Section 13.4(d) hereof, then each
Indemnified Party shall have all of the rights now or hereafter existing under
applicable law, and all rights as a secured creditor under the Uniform
Commercial Code in all relevant jurisdictions, with respect to the Indemnity
Collateral or the Special Indemnity Collateral, as the case may be, and they
agree to take all such actions as may be reasonably requested of them by an
Indemnified Party to ensure that the Indemnified Parties can realize on such
security interest.
(c) In the event an Indemnified Party asserts,
within the time period set forth in Section 13.1 hereof or
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<PAGE> 50
Section 13.2 hereof, that the Limited Partners or the Special Indemnitors have
an indemnification obligation to an Indemnified Party under this Article XIII,
and the Limited Partners or the Special Indemnitors are determined to have an
indemnification obligation pursuant to Section 13.4(d) hereof, then, (x) the
General Partner shall, to the full extent permitted by law, be deemed, without
payment of further consideration or the taking of further action by the General
Partner, the Limited Partners or the Special Indemnitors to have acquired from
any or all of the Limited Partners or the Special Indemnitors such Indemnity
Collateral or Special Indemnity Collateral as shall be equal in value (based, in
the case of Partnership Interests, on the number of Shares for which such
Partnership Interests could be exchanged, computed as of the date the Indemnity
Collateral or the Special Indemnity Collateral is acquired by the General
partner pursuant to this Section 13.3(c), and in the case of the Shares, on the
Closing Price of the Shares computed as of the date of such acquisition) to the
amount recoverable from or payable by or indemnified by the Limited Partners or
the Special Indemnitors under this Article XIII, and (y) the Indemnified Parties
shall have all of the rights now or hereafter existing under applicable law and
all rights as a secured creditor under the Uniform Commercial Code in all
relevant jurisdictions, with respect to the Indemnity Collateral and the Special
Indemnity Collateral, and the Limited Partners and the Special Indemnitors agree
to take all such actions as may be reasonably requested of them by the General
Partner to ensure that the Indemnified Parties can realize on such security
interest.
(d) The liens and the security interests in the
Indemnity Collateral and the Special Indemnity Collateral granted hereunder
shall not be released (i) with respect to the Partnership Interests and Shares
of the Limited Partners until all of the indemnification obligations of the
Limited Partners hereunder have expired or been satisfied in accordance with
their terms and (ii) with respect to the Partnership Interests and Shares
constituting Special Indemnity Collateral of the Special Indemnitors, until all
of the indemnification obligations of the Special Indemnitors hereunder have
expired or been satisfied in accordance with their terms. Upon satisfaction of
the conditions to the release of the liens and security interests in the
Indemnity collateral and the Special Indemnity Collateral set forth in (i) or
(ii) above, the General Partner shall prepare and file all documents and shall
take all other action necessary on its part to release such security interest in
the Indemnity Collateral or the Special Indemnity Collateral, as applicable.
(e) Notwithstanding anything contained in this
Article XIII to the contrary, except with respect to the Limited Partners'
representations and warranties under Paragraph 10(e) of the Contribution
Agreement, none of the Limited Partners or the Special Indemnitors shall be
liable with respect for any claim or series of related claims under this Article
XIII unless, and only
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to the extent that, the total amount recoverable under this Article XIII with
respect to such claim(s) exceeds $1,000,000.
13.5 Procedure for Seeking Indemnification. If a claim for
indemnification is or may be asserted under this Article XIII, the person or
entity against whom or which such claim is or may be asserted shall have the
right, at its own expense, to participate in the defense of any claim, action or
proceeding ("Claim") asserted which resulted in the claim for indemnification,
and if such right is exercised, the parties shall cooperate in the defense of
such action or proceeding. If a claim is asserted which is subject to possible
indemnification under this Article XIII, the person against whom such claim is
asserted shall give prompt notice thereof to such Indemnitor; provided, however,
that the failure to so provide prompt notice shall not relieve the Indemnitor
from the indemnification obligations hereunder, unless and to the extent such
failure prejudices Indemnitor's defense with regard to such claim.
13.6 Indemnification as Exclusive Remedy. Indemnification of the
Indemnified Parties pursuant to this Article XIII shall be the exclusive remedy
of the Indemnified Parties for any breach of any representation, obligation,
warranty or covenant of the Limited Partners or the Special Indemnitors, named
in this Agreement or the Closing Agreement (as that term is defined in the
Contribution Agreement) and the liability of such parties shall be limited as
provided in this Article XIII.
13.7 Recovery from Title Insurance Policy. Each Limited Partner
is relieved of liability hereunder if and to the extent the Indemnified Parties
recover for any loss or damage under any applicable title insurance policy. Each
Limited Partner shall use best efforts to collect for any such loss or damage
under any title insurance policy covering such loss or damage.
13.8 Settlements; Prior Written Consent. Notwithstanding
anything to the contrary contained in this Article XIII, no Limited Partner or
Special Indemnitor shall be liable with respect to any settlement which is made
of any claim or any amounts payable under any such settlement without the prior
written consent of such Limited Partner or Special Indemnitor who or which may
be liable with respect to such settlement under this Article XIII.
13.9 Limitation of Indemnity.
(a) With respect to the Limited Partners who were
admitted to the Partnership pursuant to the First Amendment to Agreement of
Limited Partnership dated as of March 1, 1995, the term "Limited Partners" shall
be deemed, solely for the purposes of this Article XIII, to refer to those
Persons who were admitted
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<PAGE> 52
as Limited Partners to the Partnership concurrently with the consummation of the
transactions contemplated by that certain Contribution Agreement dated as of
March 1, 1995.
(b) The term "Limited Partner" as used in this
Article XIII shall not include those Persons admitted to the Partnership as
Limited Partners pursuant to the TLC Contribution Agreement.
(c) The indemnification set forth in clause (b)
of Section 13.1 above shall not be binding upon any Limited Partner first
admitted to the Partnership on or after October 1, 1997.
ARTICLE XIV
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
14.1 Amendments.
(a) This Agreement may not be amended unless such
amendment is approved by the General Partner and by a Majority- in-Interest of
the Limited Partners, except as provided below in this Section 14.1.
(b) Notwithstanding Section 14.1(a), the General
Partner shall have the power, without the consent of the Limited Partners, to
amend this Agreement as may be required to facilitate or implement any of the
following purposes:
(1) to add to the obligations of the General
Partner or surrender any right or power granted to the General Partner or any
Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution,
termination, or withdrawal of Partners in accordance with this Agreement;
(3) to set forth the rights, powers, duties,
and preferences of the holders of any additional Partnership Interests issued
pursuant to Section 4.2 hereof;
(4) to reflect a change that does not
adversely affect the Limited Partners in any material respect, or to cure any
ambiguity, correct or supplement any provision in this Agreement not
inconsistent with law or with other provisions; and
(5) to satisfy any requirements, conditions,
or guidelines contained in any order, directive, opinion, ruling
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<PAGE> 53
or regulation of a federal or state agency or contained in federal or state law.
The General Partner will provide notice to the Limited Partners promptly after
any action under this Section 14.1(b)(5) is taken.
(c) Notwithstanding Section 14.1(a) hereof, this
Agreement shall not be amended without the consent of each Partner adversely
affected if such amendment would (i) convert a Limited Partner's interest in the
Partnership into a general partner's interest, (ii) modify the limited liability
of a Limited Partner, (iii) alter rights of the Partners to receive allocations
and distributions pursuant to Articles VI or VIII hereof (except as permitted
pursuant to Section 4.2 and Section 14.1(b)(3) hereof), (iv) alter or modify the
Rights set forth in Article XI hereof or Exhibit D hereto or (v) amend this
Section 14.1(c). Further, no amendment may alter the restrictions on the General
Partner's authority set forth in Section 7.2 without the Consent specified in
that Section.
(d) Notwithstanding Section 14.1(a) hereof, the
General Partner shall not, during such time as the Limited Partners (other than
the General Partner, in its capacity as a Limited Partner) own more than 10% of
issued and the outstanding Partnership Interests, amend or terminate this
Agreement (other than amendments which do not adversely affect any Limited
Partner) without the Consent of the Limited Partners.
14.2 Meetings of the Partners.
(a) Meetings of Partners may be called by the
General Partner (but shall not be required to be called). The call shall state
the nature of the business to be transacted. Notice of any such meeting shall be
given to all Partners not less than seven days prior to the date of such
meeting. Partners may vote in person or by proxy at such meeting. Whenever the
vote or Consent of Partners is permitted or required under this Agreement, such
vote or Consent may be given at a meeting of Partners.
(b) Any action required or permitted to be taken
at a meeting of the Partners may be taken without a meeting if a written consent
setting forth the action so taken is signed (in counterpart or otherwise) by
Partners holding a majority of the Percentage Interests of the Partners (or such
other percentage as is expressly required by this Agreement). Such consent may
be in one instrument or in several instruments, and shall have the same force
and effect as a vote of a majority of the Percentage Interests of the Partners
(or such other percentage as is expressly required by this Agreement). Such
consent shall be filed with the General Partner.
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<PAGE> 54
(c) Each Limited Partner may authorize any Person
or Persons to act for him by proxy on all matters in which a Limited Partner is
entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Limited Partner or
his attorney-in-fact. No proxy shall be valid after the expiration of 11 months
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Limited Partner executing it.
ARTICLE XV
GENERAL PROVISIONS
15.1 No Liability of Trustees and Others. Notwithstanding
anything to the contrary contained herein, no recourse shall be had by the
Partnership or any Partner against any trustee, shareholder, officer, employee,
agent or attorney of the General Partner for any act or omission of the General
Partner or any obligation or liability of the General Partner under this
Agreement, and none of the foregoing shall have any personal liability for or
with respect to any of the foregoing. In addition, if this Agreement is executed
by the trustee of any trust, it is being executed as trustee solely, and not in
any individual capacity and nothing herein shall create any liability on such
trustee or any personal property of such trustee.
15.2 Notices. All notices, offers or other communications
required or permitted to be given pursuant to this Agreement shall be in writing
and may be personally served, telecopied or sent by United States mail and shall
be deemed to have been given when delivered in person, upon receipt of telecopy,
one Business Day after deposit in the overnight mail or other next day delivery
service or three business days after deposit in United States mail, registered
or certified, postage prepaid, and properly addressed, by or to the appropriate
party. For purposes of this Section 15.2, the addresses of the parties hereto
shall be as set forth in the Partnership's records. The address of any party
hereto may be changed by a notice in writing given in accordance with the
provisions hereof.
15.3 Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary.
15.4 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one
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<PAGE> 55
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
15.5 Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
15.6 Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
15.7 Paragraph Headings. The paragraph headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
15.8 Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
15.9 Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
15.10 Partners Not Agents. Nothing contained herein shall be
construed to constitute any Partner the agent of another Partner, except as
specifically provided herein, or in any manner to limit the Limited Partners in
the carrying on of their own respective businesses or activities.
15.11 Assurances. Each of the Partners shall hereafter execute
and deliver such further instruments and do such further acts and things as may
be required or useful to carry out the intent and purpose of this Agreement and
as are not inconsistent with the terms hereof.
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<PAGE> 56
15.12 Waiver of Partition. Each Partner hereby waives any right
such Partner may have to partition its interest in the Partnership or any
property of the Partnership.
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<PAGE> 57
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed on their behalf as of the date
first above written.
LIBERTY PROPERTY TRUST,
General Partner, on its own behalf
and as attorney-in-fact for the
Limited Partners pursuant to the
power of attorney granted to
the General Partner in Section 10.7 of
the First Restated and Amended
Partnership Agreement
By: /s/ Willard G. Rouse III
-------------------------------
Title: Chief Executive Officer
-----------------------------
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<PAGE> 58
LIST OF EXHIBITS TO LIMITED PARTNERSHIP
AGREEMENT OF LIBERTY PROPERTY LIMITED PARTNERSHIP
<TABLE>
<CAPTION>
Exhibits
- --------
<S> <C>
A - Omitted
B - Existing Property Partnerships
C - Allocations
D - Matters relating to Conversion Rights
E - The Malvern Properties
F - Rights of 8.80% Series A Cumulative Redeemable
Preferred Partnership Interests
</TABLE>
<TABLE>
<CAPTION>
Schedules
- ---------
<S> <C>
Schedule 1 - Conversion Component Exercise Notice
Schedule 2 - Sale Component Exercise Notice
Schedule 3 - Non-Foreign Affidavit
</TABLE>
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<PAGE> 59
EXHIBIT "A"
[Omitted]
A-1
<PAGE> 60
EXHIBIT B
Existing Property Partnerships
<TABLE>
<S> <C>
239 Rouse & Associates
1655 Valley Center
Parkway Limited
Partnership
308P Rouse & Associates
931 South Matlack Street
Limited Partnership
322 Rouse & Associates
300 Stonegate Drive
Limited Partnership
370 Rouse & Associates
200 Hedgewood Drive
Limited Partnership
372 Rouse & Associates
100 Hedgewood Drive
Limited Partnership
373 Rouse & Associates
1495 Valley Center
Parkway Limited
Partnership a/k/a 1495
Valley Center Parkway
Limited Partnership
412 Rouse & Associates
Great Valley Retail
Limited Partnership
469 Rouse & Associates
300 Hedgewood Drive
Limited Partnership
</TABLE>
B-1
<PAGE> 61
EXHIBIT B
(Continued)
Existing Property Partnerships
<TABLE>
<S> <C>
487 Rouse & Associates
420 Lapp Road Limited
Partnership
506 Rouse & Associates
1 Chelsea Parkway
Limited Partnership
507 Rouse & Associates
3 Chelsea Parkway
Limited Partnership
508 Rouse & Associates
400 Hedgwood Drive
Limited Partnership
509 Rouse & Associates
1550 Valley Center
Parkway Limited
Partnership
510 Rouse & Associates
1560 Valley Center
Parkway Limited
Partnership
511P Rouse & Associates
14 Lee Boulevard
Limited Partnership
512P 500 Chester Field
Parkway Limited
Partnership
513P 300/400 Chester Field
Parkway Limited
Partnership
</TABLE>
B-2
<PAGE> 62
EXHIBIT B
(Continued)
Existing Property Partnerships
<TABLE>
<S> <C>
527 Rouse & Associates
580 Snowdrift Road
Limited Partnership
563 Rouse & Associates
1510 Valley Center
Parkway Limited
Partnership a/k/a
1510 Valley Center
Parkway Limited
Partnership
564 Rouse & Associates
1530 Valley Center
Parkway Limited
Partnership
582 Rouse & Associates
747 Dresher Road
Limited Partnership
596 Rouse & Associates
200 Stonegate Drive
Limited Partnership
607 Rouse & Associates
Great Valley Associates
Limited Partnership a/k/a
Great Valley Associates
625 Rouse & Associates
974 Marcon Boulevard
Limited Partnership
626 Rouse & Associates
1180 Church Road
Limited Partnership
</TABLE>
B-3
<PAGE> 63
EXHIBIT B
(Continued)
Existing Property Partnerships
<TABLE>
<S> <C>
662 Rouse & Associates
40 Valley Stream Parkway
Limited Partnership
663 Rouse & Associates
50 Valley Stream Parkway
Limited Partnership
664 Rouse & Associates
20 Valley Stream Parkway
Limited Partnership
674 Rouse & Associates
800-860 Town Center
Drive Limited Partnership
750 Rouse & Associates
1610 Medical Drive
Limited Partnership
753 Rouse & Associates
15 Great Valley Parkway
Limited Partnership
805 Morehall Associates
Limited Partnership
812 Morehall Associates
Limited Partnership
813 Rouse & Associates
311 Technology Drive
Limited Partnership
</TABLE>
B-4
<PAGE> 64
EXHIBIT B
(Continued)
Existing Property Partnerships
<TABLE>
<S> <C>
815 Morehall Associates
Limited Partnership
817 Rouse & Associates
55 Valley Stream Parkway
Limited Partnership
818 Rouse & Associates
65 Valley Stream Parkway
Limited Partnership
821 Rouse & Associates
508 Lapp Road
Limited Partnership
825 Rouse & Associates
10 Valley Stream Parkway
Limited Partnership
861 Rouse & Associates
333 Phoenixville Pike
Limited Partnership
872 Rouse & Associates
964 Marcon Boulevard
Limited Partnership
884 1566 Medical Drive
Associates Limited
Partnership
894 Roble Road Associates
Limited Partnership
</TABLE>
B-5
<PAGE> 65
EXHIBIT B
(Continued)
Existing Property Partnerships
<TABLE>
<S> <C>
901 Rouse & Associates
30 Great Valley Parkway
911 Rouse & Associates
75 Great Valley Parkway
913 Rouse & Associates
35 Great Valley Parkway
Limited Partnership
919 Rouse & Associates
77 Great Valley Parkway
Limited Parkway
921 RHW Lehigh Valley
922 Rouse & Associates
Plymouth Meeting
Limited Partnership
934 Rouse & Associates
256 Great Valley Parkway
945 2202 Hangar Place
Associates Limited
Partnership
946 2201 Hangar Place
Associates Limited
Partnership
959 Rouse & Associates
205 Great Valley Parkway
</TABLE>
B-6
<PAGE> 66
EXHIBIT B
(Continued)
Existing Property Partnerships
<TABLE>
<S> <C>
963 954 Marcon Boulevard
Associates Limited
Partnership
976 Rouse & Associates
14 Great Valley Parkway
Limited Partnership
980 Rouse & Associates
XXVII Great Valley Parkway
Limited Partnership
983 Rouse & Associates
333 Technology Drive
Limited Partnership
988 Rouse & Associates
510 Lapp Road Limited
Partnership
</TABLE>
B-7
<PAGE> 67
EXHIBIT C
Allocations
1. Allocation of Net Income, Net Loss and Net Gains from Sales.
(a) Net Income. Except as otherwise provided herein, Net
Income for any fiscal year or other applicable period shall be allocated in the
following order and priority:
(1) First, (x) to the General Partner to the
extent of, and in proportion to, the excess of the cumulative Losses allocated
to the General Partner pursuant to subparagraph (b)(2) for all prior periods
over the cumulative amount of Net Income allocated to the General Partner
pursuant to this subparagraph (a)(1)(x) for all prior periods; (y) to the
Partners, until the cumulative Net Income allocated pursuant to this
subparagraph (a)(1) (y) for the current and all prior periods equals the
cumulative Net Loss allocated pursuant to subparagraph (b)(2) hereof for all
prior periods, among the Partners in the reverse order that such Net Loss was
allocated to the Permitted Partners pursuant to subparagraph (b)(3) hereof (and,
in the event of a shift of a Partner's interest in the Partnership, to the
Partners in a manner that most equitably reflects the successors in interest to
the Permitted Partners).
(2) Thereafter, the balance of the Net Income, if
any, shall be allocated to the Partners in accordance with their respective
Percentage Interests.
(b) Net Loss. Except as otherwise provided herein, Net Loss of
the Partnership for each fiscal year or other applicable period shall be
allocated as follows:
(1) To the Partners in accordance with their
respective Percentage Interests, until each such Partner has a zero balance in
its Capital Account; for this purpose alone, the amount of the General Partner's
Capital Account balance shall be computed without regard to any Net Income, Net
Loss or distributions arising out of or attributable to the Series A Preferred
Interests other than distributions in redemption of the Series A Preferred
Interests pursuant to Section 5 of Exhibit F, then
(2) To the General Partner, to the extent of its
remaining positive balance in its Capital Account.
(3) Notwithstanding subparagraph (b)(1) hereof,
to the extent any Net Loss allocated to a Partner under subparagraph (b)(1)
hereof or this subparagraph (b)(3) would cause such Partner (hereinafter, a
"Restricted Partner") to have an Adjusted Capital Account Deficit as of the end
of the fiscal
C-1
<PAGE> 68
year to which such Net Loss relates, such Net Loss shall not be allocated to
such Restricted Partner and instead shall be allocated to the other Partner(s)
(hereinafter, the "Permitted Partners") pro rata in accordance with their
relative Percentage Interests.
(c) Notwithstanding anything herein to the contrary, it is
intended that the distribution to the Partners upon the dissolution of the
Partnership pursuant to the Section 8.2 recognize the priority accorded to the
Series A Preferred Interests, and the General Partner shall vary the allocations
hereunder, if necessary, to accomplish that result.
2. Special Allocations.
Notwithstanding any provisions of paragraph 1 of this Exhibit
C, the following special allocations shall be made in the following order:
(a) Minimum Gain Chargeback (Nonrecourse Liabilities). If
there is a net decrease in Partnership Minimum Gain for any Partnership fiscal
year (except as a result of conversion or refinancing of Partnership
indebtedness, certain capital contributions or revaluation of the Partnership
property as further outlined in Regulation Sections 1.704-2(d)(4), (f)(2) or
(f)(3)), each Partner shall be specially allocated items of Partnership income
and gain for such year (and, if necessary, subsequent years) in an amount equal
to that Partner's share of the net decrease in Partnership Minimum Gain. The
items to be so allocated shall be determined in accordance with Regulation
Section 1.704-2(f). This paragraph (a) is intended to comply with the minimum
gain chargeback requirement in said section of the Regulations and shall be
interpreted consistently therewith. Allocations pursuant to this paragraph (a)
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant hereto.
(b) Minimum Gain Attributable to Partner Nonrecourse
Debt. If there is a net decrease in Minimum Gain
Attributable to Partner Nonrecourse Debt during any fiscal year (other than due
to the conversion, refinancing or other change in the debt instrument causing it
to become partially or wholly nonrecourse, certain capital contributions, or
certain revaluations of Partnership property (as further outlined in Regulation
Section 1.704-2(i)(4)), each Partner shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in an amount equal to the Partner's share of the net decrease in the Minimum
Gain Attributable to Partner Nonrecourse Debt. The items to be so allocated
shall be determined in accordance with Regulation Section 1.704-2(i)(4) and
(j)(2). This paragraph (b) is intended to comply with the minimum gain
chargeback requirement with respect to Partner Nonrecourse Debt contained in
said section of
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the Regulations and shall be interpreted consistently therewith. Allocations
pursuant to this paragraph (b) shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant hereto.
(c) Qualified Income Offset. In the event a Partner
unexpectedly receives any adjustments, allocations or distributions described in
Regulation Section 1.704- 1(b)(2)(ii)(d)(4), (5), or (6), and such Limited
Partnership has an Adjusted Capital Account Deficit, items of Partnership income
and gain shall be specially allocated to such Partner in an amount and manner
sufficient to eliminate the Adjusted Capital Account Deficit as quickly as
possible. This paragraph (c) is intended to constitute a "qualified income
offset" under Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
(d) Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal year or other applicable period shall be allocated to the Partners in
accordance with their respective Percentage Interests.
(e) Partner Nonrecourse Deductions. Partner Nonrecourse
Deductions for any fiscal year or other applicable period shall be specially
allocated to the Partner that bears the economic risk of loss for the debt
(i.e., the Partner Nonrecourse Debt) in respect of which such Partner
Nonrecourse Deductions are attributable (as determined under Regulation Section
1.704- 2(b)(4) and (i)(1)).
(f) Curative Allocations. The Regulatory Allocations shall be
taken into account in allocating other items of income, gain, loss, and
deduction among the Partners so that, to the extent possible, the cumulative net
amount of allocations of Partnership items under paragraphs 1 and 2 of this
Exhibit C shall be equal to the net amount that would have been allocated to
each Partner if the Regulatory Allocations had not occurred. This subparagraph
(f) is intended to minimize to the extent possible and to the extent necessary
any economic distortions which may result from application of the Regulatory
Allocations and shall be interpreted in a manner consistent therewith. For
purposes hereof, "Regulatory Allocations" shall mean the allocations provided
under this paragraph 2 (other than this subparagraph.)
(g) To the extent that the Partnership is deemed, for book
purposes, to have recognized income under Code Section 108 attributable to the
repayment of certain mortgage indebtedness from the proceeds of the Offerings,
as described in the Registration Statement, any such income shall be allocated
to the Limited Partners in proportion to their relative Percentage Interests.
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(h) For each Fiscal Year or portion thereof, Net Income of the
Partnership (and gross income to the extent required to carry out the purposes
of this provision) shall be allocated to the General Partner to the extent of
the excess of the cumulative distributions made to the General Partner pursuant
to Section 3 of Exhibit "F" with respect to the current and all prior periods
over the cumulative amount of Net Income (or gross income, as the case may be)
allocated to the General Partner pursuant to this subparagraph (h) with respect
to all prior periods.
3. Tax Allocations.
(a) Generally. Subject to paragraphs (b) and (c) hereof, items
of income, gain, loss, deduction and credit to be allocated for income tax
purposes (collectively, "Tax Items") shall be allocated among the Partners on
the same basis as their respective book items.
(b) Sections 1245/1250 Recapture. If any portion of gain from
the sale of property is treated as gain which is ordinary income by virtue of
the application of Code Sections 1245 or 1250 ("Affected Gain"), then (A) such
Affected Gain shall be allocated among the Partners in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Sections 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to Clause (A) so that, to the extent possible, the other Partners are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Sections 1245 and/or 1250 not applied. For purposes
of the prior sentence, each Partner shall be treated as having been allocated
depreciation and amortization in the same proportion as such Partner (before, on
or after the date of the Partnership Agreement to which this Exhibit C is
attached), has been allocated any deductions, directly or indirectly, giving
rise to the Affected Gain.
(c) Allocations Respecting Section 704(c) and Revaluations.
Notwithstanding paragraph (b) hereof, Tax Items with respect to Partnership
property that is subject to Code Section 704(c) and/or Regulation Section
1.704-1(b)(2)(iv)(f) (collectively "Section 704(c) Tax Items") shall be
allocated in accordance with said Code section and/or Regulation Section
1.704-3, as the case may be. The allocation of Section 704(c) Tax Items shall be
subject to the ceiling rule stated in Regulation Section 1.704-3(b). Debt
cancellation income realized upon the repayment of mortgage indebtedness from
the proceeds of the Offerings, as described in the Registration Statement, shall
be accounted for as an item of built-in gain property.
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(d) Excess Nonrecourse Liabilities. The "excess nonrecourse
liabilities" of the Partnership (within the meaning of Regulation Section
1.752-3(a)(3)) shall be allocated among the Partners in accordance with the
Partners' share of the profits of the Partnership, determined by taking into
account all of the facts and circumstances relating to the economic arrangement
of the Partners.
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EXHIBIT D
Rights Terms
The Rights granted by the General Partner to the Limited
Partners pursuant to Section 11.1 of the Amended and Restated Limited
Partnership Agreement to which this Exhibit is attached (the "Agreement") shall
be subject to the following terms and conditions:
1. Definitions. The following terms shall, for
purposes of this Exhibit and the Agreement, have the meanings set
forth below:
"Beneficially Own" shall mean the ownership of
Shares by a Person who would be treated as an owner of such Shares under Section
542(a)(2) of the Code, either directly or constructively through the application
of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code.
"Conversion Factor" means 1.0, provided that in
the event that the General Partner (i) declares or pays a dividend on its
outstanding Shares in Shares or makes a distribution to all holders of its
outstanding Shares in Shares or effects a stock split, (ii) subdivides its
outstanding Shares, or (iii) combines its outstanding Shares into a smaller
number of Shares, the Conversion Factor shall be adjusted by multiplying the
Conversion Factor by a fraction, the numerator of which shall be the number of
Shares issued and outstanding on the record date for such dividend distribution,
subdivision or contribution (assuming for such purposes that such dividend,
distribution, subdivision or combination has occurred as of such time), and the
denominator of which shall be the actual number of Shares (determined without
the above assumption) issued and outstanding on the record date for such
dividend, distribution, subdivision or combination. Any adjustment to the
Conversion Factor shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event.
"Conversion Component Exercise Notice" shall have
the meaning set forth in Paragraph 2(a) hereof.
"Conversion Rights" shall have the meaning set
forth in Paragraph 2(a) hereof.
"Election Notice" shall mean the written notice to
be given by the General Partner to an Exercising Partner in response to the
receipt by the General Partner of an Exercise Notice from such Exercising
Partner.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, or any successor statute.
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"Exercise Notice" shall mean and include a
Conversion Component Exercise Notice and/or a Sale Component
Exercise Notice.
"Exercising Partners" shall have the meaning set
forth in Paragraph 2 hereof.
"Offered Interests" shall mean the Partnership
Interests of the Exercising Partners identified in a Conversion Component
Exercise Notice or a Sale Component Exercise Notice which, pursuant to the
exercise of Conversion Rights or Sale Rights, can be acquired under the terms
hereof.
"Partnership Interests" shall mean the limited
partnership interests of an Exercising Partner in Liberty Property Limited
Partnership, a Delaware limited partnership, or any successor thereto.
"Purchase Price" shall mean the number of Shares
or the amount of cash payable for Partnership Interests pursuant to the
provisions of Paragraph 5 hereof.
"REIT Shares Amount" shall mean a number of Shares
equal to the product of the number of Partnership Interests offered for
conversion by an Exercising Partner, multiplied by the Conversion Factor;
provided that in the event the General Partner issues to all holders of Shares
rights, options, warrants or convertible or exchangeable securities entitling
its shareholders to subscribe for or purchase Shares, or any other securities or
property (collectively, the "rights") then the REIT Shares Amount shall also
include such rights that a holder of that number of REIT Shares would be
entitled to receive.
"Sale Component Exercise Notice" shall have the
meaning set forth in Paragraph 2(b) hereof.
"Sale Rights" shall have the meaning set forth in
Paragraph 2(b) hereof.
"Securities Act" shall mean the Securities Act of
1933, as amended, or any successor statute.
"Share" shall mean a common share of beneficial
interest of the General Partner.
"Valuation Date" means the date which is fifteen
days prior to the scheduled date of closing of a sale made pursuant to the
exercise of Conversion Rights or Sale Rights.
"Value" means, with respect to a Share, the average
of the daily market price for the ten (10) consecutive trading days immediately
preceding the Valuation Date. The market price for each such trading day shall
be: (i) if the Shares are listed or admitted to trading on any securities
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exchange or the NASDAQ National Market System, the closing price, regular way,
on such day, or if no such sale takes place on such day, the average of the
closing bid and asked prices on such day, (ii) if the Shares are not listed or
admitted to trading on any securities exchange or the NASDAQ National Market
System, the last reported sale price on such day or, if no sale takes place on
such day, the average of the closing bid and asked prices on such day, as
reported by a reliable quotation source designated by the General Partner, or
(iii) if the Shares are not listed or admitted to trading on any securities
exchange or the NASDAQ National Market System and no such last reported sale
price or closing bid and asked prices are available, the average of the reported
high bid and low asked prices on such day, as reported by a reliable quotation
source designated by the General Partner, or if there shall be no bid and asked
prices on such day, the average of the high bid and low asked prices, as so
reported, on the most recent day (not more than 10 days prior to the date in
question) for which prices have been so reported; provided that if there are no
bid and asked prices reported during the 10 days prior to the date in question,
the Value of the Shares shall be determined by the General Partner acting in
good faith on the basis of such quotations and other information as it
considers, in its reasonable judgment, appropriate. In the event the REIT Shares
Amount includes rights that a holder of Shares would be entitled to receive,
then the Value of such rights shall be determined by the General Partner acting
in good faith on the basis of such quotations and other information as it
considers, in its reasonable judgment, appropriate.
2. Delivery of Exercise Notices.
(a) Any one or more Limited Partners ("Exercising
Partners") may, subject to the limitations set forth herein:
(i)deliver to the General Partner written
notice in the form attached hereto as Schedule 1 (the "Conversion Component
Exercise Notice") pursuant to which such Exercising Partners elect to exercise
their rights to convert (the "Conversion Rights") all or any portion of their
Partnership Interests into Shares, subject to the limitations contained in
Paragraphs 3 and 4 below; and/or
(ii) deliver to the General Partner written
notice in the form attached hereto as Schedule 2 (the "Sale Component Exercise
Notice") pursuant to which such Exercising Partners elect to exercise their
rights to sell (the "Sale Rights") all or any portion of their Partnership
Interests to the General Partner (or the General Partner's designee), subject to
the limitations contained in Paragraphs 3 and 5 below.
(b) If the Exercising Partner is not a nonresident
alien or a foreign entity, such as a corporation, partnership, trust or estate
(as those terms are defined in the Code and Regulations), such Exercising
Partner shall deliver to
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<PAGE> 75
the General Partner a Certification of Non-Foreign Status in the form attached
hereto as Schedule 3 (the "Non-Foreign Certificate") for withholding purposes
under Section 1445 of the Code. In the event that an Exercising Partner (i) is a
nonresident alien or foreign entity, such as a corporation, partnership, trust
or estate (as those terms are defined in the Code and Regulations), or (ii) does
not furnish a Conversion Certificate to the General Partner, the withholding
provision in paragraph 10 shall apply.
3. Limitation on Delivery of Exercise Notices. No Exercise
Notice may be delivered with respect to the lesser of (i) all Partnership
Interests owned by the Limited Partner exercising such Notice or (ii) 1,000
Partnership Interests.
4. Limitation on Exercise of Conversion Rights and Sale Rights.
(a) If a Conversion Component Exercise Notice is
delivered to the General Partner but (i) as a result of restrictions contained
in the Declaration of Trust of the General Partner as of the date of the
Agreement, the Conversion Rights cannot be exercised in full, or (ii) the
issuance of Shares pursuant to a full exercise of the Conversion Rights would
singly or when aggregated with any prior or concurrent issuances (A) cause the
General Partner to cease to comply with the REIT Requirements or (B) cause any
Person or the Initial Limited Partners and Persons who would be treated as
Beneficially Owning Shares in the Company owned by one or more of the Initial
Limited Partners seeking to exercise the Rights to Beneficially Own more than
29.9% of the issued and outstanding Shares, then the Conversion Component
Exercise Notice shall be deemed to be modified such that the Conversion Rights
shall be exercised only to the extent permitted as set forth above in this
paragraph; with the remainder of such Rights being deemed to be Sale Rights and
the corresponding portion of the Conversion Component Exercise Notice being
deemed to be a Sale Component Exercise Notice.
(b) The exercise of Sale Rights by Rouse Senior
Executives is subject to the restrictions imposed pursuant to the third sentence
of Section 9.2(a) of the Agreement.
5. Computation of Purchase Price; Form of Payment.
With respect to the exercise of Conversion Rights,
the Purchase Price payable for the Offered Interests shall be payable by the
transfer to the Exercising Partner by the General Partner or the Partnership of
the number of Shares equal to the number of Offered Interests multiplied by the
Conversion Factor. With respect to the exercise of Sale Rights, the Purchase
Price shall, in the sole and absolute discretion of the General Partner, be paid
in the form of (a) cash or check, or by wire transfer of immediately available
funds to the Exercising
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<PAGE> 76
Partner's designated account, in which case the purchase price shall be the
Value of the REIT Shares Amount which would have been issuable upon exercise of
the Conversion Rights, or (b) by the transfer to the Exercising Partner by the
General Partner of a number of Shares equal to the number of Offered Interests
multiplied by the Conversion Factor.
6. Closing; Delivery of Election Notice. The closing of the
acquisition of Offered Interests shall, unless otherwise mutually agreed, be
held at the principal offices of the General Partner or, at the option of the
General Partner, may be effectuated by mail, as of the following times:
(a) With respect to the exercise of Conversion
Rights, at 2:00 p.m. on that date which is seventy days after the receipt by the
General Partner of the applicable Exercise Notice (or if such day is not a
Business Day, the first Business Day thereafter); and
(b) With respect to the exercise of Sale Rights,
the General Partner shall, within thirty (30) days after receipt by the General
Partner of any Sale Component Exercise Notice delivered in accordance with the
requirements of Paragraph 3 hereof, deliver to the Exercising Partner an
Election Notice, which Election Notice shall specify the form of the Purchase
Price (which shall be in accordance with Paragraph 5 hereof) to be paid to such
Exercising Partner, and the closing thereof shall be held at 2:00 p.m. on that
date which is seventy (70) days after the receipt by the General Partner of the
applicable Exercise Notice (or if such day is not a Business Day, the first
Business Day thereafter).
7. Closing Deliveries. At the closing of the purchase and sale
of Offered Interests, payment of the Purchase Price shall be accompanied by
proper instruments of transfer and assignment relating to the Offered Interests
and, with respect to any Shares which are issued in payment of the Purchase
Price or any portion thereof, by the delivery of a share certificate or
certificates evidencing the Shares to be issued and registered in the name of
the Exercising Partner or its designee. Immediately after the closing, the
Offered Interests shall continue to be outstanding and shall be owned by the
General Partner.
8. Covenants of the General Partner. The General
Partner covenants and agrees as follows:
(a) At all times during the pendency of the
Rights, the General Partner shall reserve for issuance such number of Shares as
may be necessary to enable the General Partner to issue such Shares in full
payment of the Purchase Price in regard to all Partnership Interests which are
from time to time outstanding.
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(b) As long as the General Partner shall be
obligated to file periodic reports under the Exchange Act, the General Partner
will timely file such reports in such manner as shall enable any recipient of
Shares issued to Limited Partners hereunder in reliance upon an exemption from
registration under the Securities Act to continue to be eligible to utilize Rule
144 promulgated by the SEC pursuant to the Securities Act, or any successor rule
or regulation or statute thereunder, for the resale thereof.
(c) During the pendency of the Rights, the
Limited Partners shall receive all financial statements and communications
transmitted from time to time by the General Partner to its shareholders
generally.
(d) Notwithstanding the General Partner's
determination as to the form in which the Purchase Price shall be payable, the
General Partner shall be required to pay the Purchase Price by cash or check or
wire transfer of immediately available funds to the extent that payment by
issuance of Shares would disqualify the General Partner from being treated as a
REIT under the Code.
9. Limited Partners' Covenants. Each Limited Partner covenants
and agrees with the General Partner that all Offered Interests tendered to the
General Partner in accordance with the exercise of Rights herein provided shall
be delivered to the General Partner free and clear of all Liens (except any
which may have been given to the General Partner or the Partnership) and should
any such Liens exist or arise with respect to such Offered Interests, the
General Partner shall be under no obligation to acquire the same unless, in
connection with such acquisition, the General Partner has elected to pay such
portion of the Purchase Price in the form of cash consideration in circumstances
where such consideration will be sufficient to cause such existing Lien to be
discharged in full upon application of all or a part of such consideration and
the General Partner is expressly authorized to apply such portion of the
Purchase Price as may be necessary to discharge such Lien in full. Each Limited
Partner further agrees that, in the event any state or local property transfer
tax is payable as a result of the transfer of its Offered Interests to the
General Partner (or its designee), such Limited Partner shall assume and timely
pay such transfer tax. Each Limited Partner hereby indemnifies and agrees to
save the General Partner harmless of, from and against any damages, costs and
expenses arising from a breach of the Limited Partner's covenants contained in
this paragraph, which indemnity shall survive the closing of any exercise of
Rights hereunder.
10. Withholding. If this Paragraph applies pursuant to
Paragraph 2(b) hereof, the General Partner shall have the authority to take all
actions necessary in order to comply with its withholding obligations pursuant
to Section 1445 of the Code. Such authority shall include the sale by the
General Partner to
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one or more third parties of all or a portion of the Shares otherwise payable to
the Exercising Partner pursuant to Paragraph 5 hereof and the use of such sale
proceeds to satisfy any withholding obligations arising from such Exercising
Partner's exercise of the Rights. The Shares sold pursuant to this Section shall
be treated as issued to the Exercising Partner in accordance with Paragraph 5
hereof.
D-7
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SCHEDULE 1
LIBERTY PROPERTY LIMITED PARTNERSHIP
CONVERSION COMPONENT EXERCISE NOTICE
All capitalized terms herein shall have the meanings set forth
in Exhibit D to the Agreement of Limited Partnership of Liberty Property Limited
Partnership dated as of June 23, 1994 (the "Rights Terms"), the terms and
provisions of which are hereby incorporated by reference.
Pursuant to the Rights Terms, the undersigned Exercising
Partner hereby irrevocably elects to exercise Conversion Rights with respect to
______ Offered Interests. The undersigned acknowledges that the Purchase Price
payable for the Offered Interests shall be the issuance to the Exercising
Partner by the Trust of ______ Shares.
Unless otherwise indicated in the attached Designee
Registration Form, Shares issued pursuant to the exercise of Conversion Rights
herein shall be registered solely in the name of the Exercising Partner.
Attached hereto is the Certification of Non-Foreign Status of
the Exercising Partner.
Dated:____________, 1995 EXERCISING PARTNER
Individual
-------------------------------
-------------------------------
Print Name
-------------------------------
Address
-------------------------------
Corporation, Partnership
or Other Entity
Corporation -------------------------------
Attest: By:
-------------------------- ----------------------------
Title:
-------------------------------
Social Security No./
Tax Identification No.
D-8
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SCHEDULE 2
LIBERTY PROPERTY LIMITED PARTNERSHIP
SALE COMPONENT EXERCISE NOTICE
All capitalized terms herein shall have the meanings set forth
in Exhibit D to the Agreement of Limited Partnership of Liberty Property Limited
Partnership dated as of June 23, 1994 (the "Rights Terms"), the terms and
provisions of which are hereby incorporated by reference.
Pursuant to the Rights Terms, the undersigned Exercising
Partner hereby irrevocably elects to exercise Sale Rights with respect to ______
Offered Interests. The undersigned acknowledges that the Purchase Price payable
for the Offered Interests shall be, at the Trust's election, either: (a) cash,
check or wire transfer of the Value of ______ Shares (determined in accordance
with the Rights Terms), or (b) the issuance to the Exercising Partner by the
Trust ______ of Shares.
Unless otherwise indicated in the attached Designee
Registration Form, Shares, if any, issued pursuant to the exercise of Sale
Rights herein shall be registered solely in the name of the Exercising Partner.
Attached hereto is the Certification of Non-Foreign Status of
the Exercising Partner.
Dated:____________, 1995 EXERCISING PARTNER
Individual
-------------------------------
-------------------------------
Print Name
-------------------------------
Address
-------------------------------
Corporation, Partnership
or Other Entity
Corporation -------------------------------
Attest: By:
-------------------------- ----------------------------
Title:
-------------------------------
Social Security No./
Tax Identification No.
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<PAGE> 81
SCHEDULE 3
AFFIDAVIT REGARDING FOREIGN INVESTMENT
IN REAL PROPERTY TAX ACT
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if the transferor
is a foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by
_______________________________ ("Transferor"), the undersigned hereby affirms
the following on behalf of Transferor:
1. Transferor is not a foreign person, foreign corporation,
foreign partnership, foreign trust, or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is
______________;
3. Transferor's office address is:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Transferor understands that this affidavit may be disclosed to
the Internal Revenue Service by the transferee and that any false statement
contained in this affidavit could be furnished by fine, imprisonment or both.
Transferor understands that the transferee is relying on this
affidavit in determining whether withholding of tax is required.
Under penalties of perjury, the undersigned declares that they
have examined this affidavit and, to the best of the undersigned's knowledge and
belief it is true, correct and complete, and that the undersigned has authority
to execute this document on behalf of Transferor.
Dated: __________________ ______________________________
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EXHIBIT E
Malvern Properties
<TABLE>
<S> <C>
412 Liberty Boulevard
487 420 Lapp Road
511P 14 Lee Boulevard
512P 500 Chester Field
513P 300-400 Chester Field
607 45-67 Great Valley Parkway
662 40 Valley Stream Parkway
663 50 Valley Stream Parkway
664 20 Valley Stream Parkway
753 15 Great Valley Parkway
805 257-275 Great Valley Parkway
811 300 Tech Drive
812 277-293 Great Valley Parkway
813 311 Tech Drive
814 325 Tech Drive
815 7 Great Valley Parkway
817 55 Valley Stream Parkway
818 65 Valley Stream Parkway
821 508 Lapp Road
825 10 Valley Stream Parkway
861 333 Phoenixville Parkway
901 30 Great Valley Parkway
911 75 Great Valley Parkway
913 27-43 Great Valley Parkway
919 77-123 Great Valley Parkway
925 260 Great Valley Parkway
934 256 Great Valley Parkway
959 205 Great Valley Parkway
976 14 Great Valley Parkway
980 155 Great Valley Parkway
983 333 Tech Drive
988 510 Lapp Road
</TABLE>
E-1
<PAGE> 83
EXHIBIT F
LIBERTY PROPERTY LIMITED PARTNERSHIP
STATEMENT ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF THE 8.80% SERIES A CUMULATIVE
REDEEMABLE PREFERRED PARTNERSHIP INTERESTS
The "8.80% Series A Cumulative Redeemable Preferred
Partnership Interests" possess the following designations, preferences, rights,
restrictions, limitations as to distributions, qualifications and terms and
conditions of redemption as set forth below:
(1) Designation and Number. A series of preferred partnership
interests in the Partnership (the "Preferred Interests") designated the "8.80%
Series A Cumulative Redeemable Preferred Partnership Interests" (the "Series A
Preferred Interests"), is hereby established. The maximum number of partnership
interests of the Series A Preferred Interests shall be 5,750,000. The Series A
Preferred Interests shall not be certificated and may not, under any
circumstances, be transferrable by the General Partner to any other person or
entity.
(2) Rank. The Series A Preferred Interests will, with respect
to distribution rights and rights upon liquidation, dissolution or winding up of
the Partnership, rank (a) senior to the partnership interests of the General
Partner and of the Limited Partners, and to all equity securities ranking junior
to such Series A Preferred Interests; (b) on a parity with all equity securities
issued by the Partnership the terms of which specifically provide that such
equity securities rank on a parity with the Series A Preferred Interests; and
(c) junior to all equity securities issued in accordance with Section 6(b) below
by the Partnership the terms of which specifically provide that such equity
securities rank senior to the Series A Preferred Interests. The term "equity
securities" shall not include convertible debt securities.
(3) Distributions.
(a) The General Partner, as holder of the Series A
Preferred Interests, shall be entitled to receive, when and as authorized by the
General Partner in its capacity as general partner, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate of 8.80% per annum of the $25.00 liquidation
preference (equivalent to a fixed annual amount of $2.20 per interest). Such
distributions shall be cumulative from the first date on which any Series A
Preferred Interest is issued and shall be payable
F-1
<PAGE> 84
quarterly in arrears on or before the 30th day of January, April, June and
October of each year or, if any such date is not a business day (as defined
herein), the next succeeding business day (each, a "Distribution Payment Date").
The first distribution, which will be payable on October 30, 1997, will be for
less than a full quarter. Such distribution and any distribution payable on the
Series A Preferred Interests for any partial distribution period will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(b) No distributions on Series A Preferred Interests
shall be authorized by the General Partner or paid or set apart for payment by
the Partnership at such time as the terms and provisions of any agreement of the
Partnership, including any agreement relating to its indebtedness, prohibits
such authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, distributions on
the Series A Preferred Interests will accrue whether or not the terms and
provisions set forth in Section 3(b) hereof at any time prohibit the current
payment of distributions, whether or not the Partnership has earnings, whether
or not there are funds legally available for the payment of such distributions
and whether or not such distributions are authorized. Accrued but unpaid
distributions on the Series A Preferred Interests will accumulate as of the
Distribution Payment Date on which they first become payable.
(d) Except as provided in Section 3(e) below, no
distributions will be authorized or paid or set apart for payment with respect
to the General Partner interest, the Limited Partner interests or on any other
equity interest of the Partnership or any other series of Preferred Interests
ranking, as to distributions, on a parity with or junior to the Series A
Preferred Interests for any period unless full cumulative distributions for all
past distribution periods and the then current distribution period have been or
contemporaneously are (i) authorized and paid or (ii) authorized and a sum
sufficient for the payment thereof is set apart for such payment on the Series A
Preferred Interests.
(e) When distributions are not paid in full (or a
sum sufficient for such full payment is not so set apart) upon the Series A
Preferred Interests and the interests of any other series of Preferred Interests
ranking on a parity as to distributions with the Series A Preferred Interests,
all distributions authorized upon the Series A Preferred Interests and any other
series of Preferred Interests ranking on a parity as to distributions with the
Series A Preferred Interests shall be authorized pro rata so that the amount of
distributions authorized per Series A Preferred Interest and such other series
of Preferred Interests shall in all cases
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bear to each other the same ratio that accrued distributions on the Series A
Preferred Interests and such other series of Preferred Interests (which shall
not include any accrual in respect of unpaid distributions on such other series
of Preferred Interests for prior distribution periods if such other series of
Preferred Interests does not have a cumulative distribution) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distribution payment or payments on Series A Preferred Interests which may
be in arrears.
(f) Except as provided in the immediately preceding
paragraph, unless full cumulative distributions on the Series A Preferred
Interests have been or contemporaneously are authorized and paid or authorized
and a sum sufficient for the payment thereof is set apart for payment for all
past distribution periods and the then current distribution period, no
distributions shall be authorized or paid or set aside for payment nor shall any
other distribution be authorized or made with respect to the General Partner
interest, the Limited Partner interests or to any other equity interest of the
Partnership ranking junior to or on a parity with the Series A Preferred
Interests as to distributions or upon liquidation, nor shall the General Partner
interest, any Limited Partner interest, or any other equity interest of the
Partnership ranking junior to or on a parity with the Series A Preferred
Interests as to distributions or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such interests) by the
Partnership (except by conversion into or exchange for other equity interests of
the Partnership ranking junior to the Series A Preferred Interests as to
distributions and upon liquidation). The foreclosure by the Partnership on the
Limited Partner interests constituting the Indemnity Collateral and/or the
Special Indemnity Collateral (as defined in Section 13.3 of the Partnership
Agreement) shall not be deemed to be a redemption, purchase or acquisition for
consideration for purposes of this Section 3(f).
(g) The General Partner, as holder of the Series A
Preferred Interests, shall not be entitled to any distribution, whether payable
in cash, property or equity interests in excess of full cumulative distributions
on the Series A Preferred Interests as described above. Any distribution made on
the Series A Preferred Interests shall first be credited against the earliest
accrued but unpaid distribution due with respect to such interests which remains
payable.
(4) Liquidation Preference.
(a) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Partnership, the General
Partner, as holder of the Series A Preferred Interests then outstanding, is
entitled to be paid out of the assets of the Partnership legally available for
distribution to its equity
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<PAGE> 86
interest holders a liquidation preference of $25.00 per Series A Preferred
Interest, plus an amount equal to any accrued and unpaid distributions to the
date of payment, before any distribution of assets is made with respect to the
General Partner interest, the Limited Partner interest or to the holders of any
other class or series of equity interests of the Partnership that ranks junior
to the Series A Preferred Interests as to liquidation rights.
(b) In the event that, upon any such voluntary or
involuntary liquidation, dissolution or winding up, the available assets of the
Partnership are insufficient to pay the amount of the liquidating distributions
on all outstanding Series A Preferred Interests and the corresponding amounts
payable on all other classes or series of equity interests of the Partnership
ranking on a parity with the Series A Preferred Interests in the distribution of
assets, then the General Partner, as holder of the Series A Preferred Interests
and all other such classes or series of equity interests shall share ratably in
any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled.
(c) Written notice of any such liquidation,
dissolution or winding up of the Partnership, stating the payment date or dates
when, and the place or places where, the amounts distributable in such
circumstances shall be payable, shall be given by first class mail, postage
pre-paid, not less than three nor more than 60 days prior to the payment date
stated therein, to the General Partner, as holder of the Series A Preferred
Interests.
(d) After payment to the General Partner of the full
amount of the liquidating distributions to which it is entitled as holder of
Series A Preferred Interests, the General Partner will have no right or claim to
any of the remaining assets of the Partnership with respect to the Series A
Preferred Interests.
(e) The consolidation or merger of the Partnership
with or into any other partnership, corporation, trust or entity or of any other
partnership, corporation, trust or other entity with or into the Partnership or
the sale, lease or conveyance of all or substantially all of, the property or
business of the Partnership, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Partnership.
(5) Redemption.
(a) Right of Optional Redemption. The Series A
Preferred Interests are not redeemable prior to July 30, 2002. On and after July
30, 2002, the Partnership, at its option and upon not less than three nor more
than 60 days' written notice, may, with Proceeds designated for such purpose as
set forth in Section 5(b) below, redeem the Series A Preferred Interests, in
whole or in part, at any time or from time to time, for cash at a redemption
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<PAGE> 87
price of $25.00 per interest, plus all accrued and unpaid distributions thereon
to the date fixed for redemption, without interest.
(b) Limitations on Redemption.
(i) Proceeds from the sale of shares of
beneficial interest of the General Partner which are contributed to the
Partnership ("Proceeds") may be used by the Partnership only in the manner
specified by the General Partner. If the General Partner specifies that some or
all of such Proceeds are to be used to redeem Series A Preferred Interests in
order to provide the General Partner with funds to redeem some or all of the
8.80% Series A Cumulative Redeemable Preferred Shares of Beneficial Interest
(the "Series A Preferred") of the General Partner, then the Partnership shall
distribute such specified amount of Proceeds to the General Partner in
redemption of Series A Preferred Interests in order to enable the General
Partner to redeem a like amount of its Series A Preferred with such Proceeds.
The redemption price of the Series A Preferred Interests (other than the portion
thereof consisting of accrued and unpaid distributions) is payable only from
Proceeds designated for such purpose by the General Partner. For purposes of the
first sentence of this Section 5(b)(i), "shares of beneficial interest of the
General Partner" means any equity securities (including Common Shares and
Preferred Shares), shares, interest, participation or other ownership interests
(however designated) of the General Partner and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options
issued by the General Partner to purchase any of the foregoing.
(ii) Unless full cumulative distributions on
all Series A Preferred Interests shall have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
is set apart for payment for all past distribution periods and the then current
distribution period, no Series A Preferred Interests shall be redeemed unless
all outstanding Series A Preferred Interests are simultaneously redeemed, and
the Partnership shall not purchase or otherwise acquire directly or indirectly
any Series A Preferred Interests.
(c) Rights to Distributions on Interests Called for
Redemption. Immediately prior to any redemption of Series A Preferred Interests,
the Partnership shall pay, in cash, any accumulated and unpaid distributions
through the redemption date.
(d) Procedures for Redemption.
(i) Notice of redemption will be given in
writing to the General Partner, as holder of the Series A Preferred Interests,
not less than three nor more than 60 days prior to the redemption date. No
failure to give such notice or any defect
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<PAGE> 88
thereto or in the mailing thereof shall affect the validity of the proceedings
for the redemption of any Series A Preferred Interests.
(ii) In addition to any information required
by law, such notice shall state: (A) the redemption date; (B) the redemption
price; (C) the number of Series A Preferred Interests to be redeemed; (D) the
place or places where the Series A Preferred Interests are to be surrendered for
payment of the redemption price; and (E) that distributions on the interests to
be redeemed will cease to accrue on such redemption date. If less than all of
the Series A Preferred Interests are to be redeemed, the notice mailed to the
General Partner shall also specify the number of Series A Preferred Interests to
be redeemed.
(iii) If notice of redemption of any Series
A Preferred Interests has been given and if the funds necessary for such
redemption have been set aside by the Partnership in trust for the benefit of
the General Partner, as holder of the Series A Preferred Interests so called for
redemption, then from and after the redemption date distributions will cease to
accrue on such Series A Preferred Interests, such Series A Preferred Interests
shall no longer be deemed outstanding and all rights of the General Partner, as
holder of such interests will terminate, except the right to receive the
redemption price. The General Partner, as holder of the Series A Preferred
Interests to be redeemed, shall surrender such Series A Preferred Interests at
the place designated in such notice and, upon surrender in accordance with said
notice of the Series A Preferred Interests so redeemed (pursuant to an
instrument of surrender in a form determined by the Partnership), such Series A
Preferred Interests shall be redeemed by the Partnership at the redemption price
plus any accrued and unpaid distributions payable upon such redemption. In case
less than all the Series A Preferred Interests are redeemed, an instrument (in a
form determined by the Partnership) setting forth the number of unredeemed
interests owned by the General Partner shall be executed by the Partnership and
the General Partner, as such holder, in duplicate, with a copy retained by each
party thereto.
(6) No Participation in Management.
(a) The General Partner, in its capacity as holder
of Series A Preferred Interests, shall not take part in the management of the
Partnership's business, transact any business in the Partnership's name or have
the power to sign documents for or otherwise bind the Partnership. Any rights
expressly granted in this Agreement to the General Partner, in its capacity as
holder of the Series A Preferred Interests, shall not be deemed to be rights
relating to the management of the Partnership's business. The Series A Preferred
Interests are not general partnership interests in the Partnership.
(b) So long as any Series A Preferred Interests
remain outstanding, the Partnership shall not, without the approval
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<PAGE> 89
of the General Partner in its capacity as holder of the Series A Preferred
Interests, (i) authorize or create, or increase the authorized or issued amount
of, any class or series of partnership interests ranking prior to the Series A
Preferred Interests with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding up or reclassify any
authorized partnership interests of the Partnership into any such partnership
interests, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such partnership interests, (ii)
amend, alter or repeal the provisions of this Agreement, whether by merger,
consolidation or otherwise, so as to materially and adversely affect any right,
preference or privilege of the Series A Preferred Interests or the General
Partner as holder thereof or (iii) enter into a consolidation or merger in which
another entity is the surviving entity, unless the General Partner, as holder of
the Series A Preferred Interests, receives a preference security the rights,
preferences and privileges of which do not differ from those of the Series A
Preferred Interests in any manner which is material and adverse to the General
Partner as holder of the Series A Preferred Interests; provided, however, that
with respect to the occurrence of any event set forth in (ii) or (iii) above, so
long as the Series A Preferred Interests remain outstanding with the terms
thereof materially unchanged, or the terms of the securities issued in exchange
for the Series A Preferred Interests in the consolidation or merger are not
materially different from those of the Series A Preferred Interests, the
occurrence of any such event shall not be deemed to materially and adversely
affect such rights, preferences or privileges of the General Partner as holder
of the Series A Preferred Interests and provided further that any increase in
the amount of the authorized Preferred Interests or the creation or issuance of
any other series of Preferred Interests, or any increase in the amount of
authorized interests of such series, in each case ranking on a parity with or
junior to the Series A Preferred Interests with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely affect such rights,
preferences or privileges.
(7) Conversion. The Series A Preferred Interests are not
convertible into or exchangeable for any other property or securities of the
Partnership.
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<PAGE> 90
STATE OF-------------------------------:
: ss.
COUNTY OF------------------------------:
On the _____ day of ___________, 199_, before me, the
subscriber, a Notary Public in and for the State and County aforesaid,
personally appeared ________________, who acknowledged himself/herself to be
________________, and that he/she executed the foregoing Instrument for the
purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
-------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires:
F-8
<PAGE> 1
EXHIBIT 10.1
LIBERTY PROPERTY LIMITED PARTNERSHIP,
AS OBLIGOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
-----------------------
INDENTURE
DATED AS OF AUGUST 14, 1997
-------------------------------------------
Debt Securities
-------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES.................................................................................... 1
RECITALS OF THE COMPANY.................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................. 1
SECTION 101. Definitions............................................................ 1
SECTION 102. Compliance Certificates and Opinions................................... 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
SECTION 110. Benefits of Indenture.................................................. 16
SECTION 111. Non-Recourse........................................................... 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..................................... 17
ARTICLE THREE
THE SECURITIES....................................................................... 18
SECTION 301. Amount Unlimited; Issuable in Series................................... 18
SECTION 302. Denominations.......................................................... 22
SECTION 303. Execution, Authentication, Delivery and Dating......................... 22
SECTION 304. Temporary Securities................................................... 24
SECTION 305. Registration, Registration of Transfer and Exchange.................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................... 29
SECTION 307. Payment of Interest; Interest Rights Preserved......................... 31
SECTION 308. Persons Deemed Owners.................................................. 32
SECTION 309. Cancellation........................................................... 33
SECTION 310. Computation of Interest................................................ 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE........................................................... 34
SECTION 401. Satisfaction and Discharge of Indenture................................ 34
SECTION 402. Application of Trust Funds............................................. 35
</TABLE>
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<TABLE>
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ARTICLE FIVE
REMEDIES............................................................................. 35
SECTION 501. Events of Default...................................................... 35
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................... 37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........ 38
SECTION 504. Trustee May File Proofs of Claim....................................... 39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons........................................................................ 39
SECTION 506. Application of Money Collected......................................... 40
SECTION 507. Limitation on Suits.................................................... 40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-
Whole Amount, if any, Interest and Additional Amounts.......................... 41
SECTION 509. Restoration of Rights and Remedies..................................... 41
SECTION 510. Rights and Remedies Cumulative......................................... 41
SECTION 511. Delay or Omission Not Waiver........................................... 41
SECTION 512. Control by Holders of Securities....................................... 41
SECTION 513. Waiver of Past Defaults................................................ 42
SECTION 514. Waiver of Usury, Stay or Extension Laws................................ 42
SECTION 515. Undertaking for Costs.................................................. 42
ARTICLE SIX
THE TRUSTEE.......................................................................... 43
SECTION 601. Notice of Defaults..................................................... 43
SECTION 602. Certain Rights of Trustee.............................................. 43
SECTION 603. Not Responsible for Recitals or Issuance of Securities................. 44
SECTION 604. May Hold Securities.................................................... 45
SECTION 605. Money Held in Trust.................................................... 45
SECTION 606. Compensation and Reimbursement......................................... 45
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests......... 46
SECTION 608. Resignation and Removal; Appointment of Successor...................... 46
SECTION 609. Acceptance of Appointment by Successor................................. 47
SECTION 610. Merger, Conversion, Consolidation or Succession to Business............ 48
SECTION 611. Appointment of Authenticating Agent.................................... 49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................... 50
SECTION 701. Disclosure of Names and Addresses of Holders........................... 50
SECTION 702. Reports by Trustee..................................................... 50
SECTION 703. Reports by Company..................................................... 50
SECTION 704. The Company to Furnish Trustee Names and Addresses of Holders.......... 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE..................................... 51
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions............................ 51
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
SECTION 802. Rights and Duties of Successor Entity.................................. 52
SECTION 803. Officers' Certificate and Opinion of Counsel........................... 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES.............................................................. 53
SECTION 901. Supplemental Indentures Without Consent of Holders..................... 53
SECTION 902. Supplemental Indentures with Consent of Holders........................ 54
SECTION 903. Execution of Supplemental Indentures................................... 55
SECTION 904. Effect of Supplemental Indentures...................................... 55
SECTION 905. Conformity with Trust Indenture Act.................................... 55
SECTION 906. Reference in Securities to Supplemental Indentures..................... 55
SECTION 907. Notice of Supplemental Indentures...................................... 56
ARTICLE TEN
COVENANTS............................................................................ 56
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount (if any),
Interest and Additional Amounts................................................ 56
SECTION 1002. Maintenance of Office or Agency....................................... 56
SECTION 1003. Money for Securities Payments to Be Held in Trust..................... 58
SECTION 1004. Intentionally Omitted................................................. 59
SECTION 1005. ...................................................................... 59
SECTION 1006. Maintenance of Properties............................................. 59
SECTION 1007. Insurance............................................................. 60
SECTION 1008. Payment of Taxes and Other Claims..................................... 60
SECTION 1009. Provision of Financial Information.................................... 60
SECTION 1010. Statement as to Compliance............................................ 60
SECTION 1011. Additional Amounts.................................................... 60
SECTION 1012. Waiver of Certain Covenants........................................... 61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES............................................................. 62
SECTION 1101. Applicability of Article; Redemption to Maintain REIT Status.......... 62
SECTION 1102. Election to Redeem; Notice to Trustee................................. 62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..................... 62
SECTION 1104. Notice of Redemption.................................................. 62
SECTION 1105. Deposit of Redemption Price........................................... 64
SECTION 1106. Securities Payable on Redemption Date................................. 64
SECTION 1107. Securities Redeemed in Part........................................... 65
ARTICLE TWELVE
SINKING FUNDS........................................................................ 65
SECTION 1201. Applicability of Article.............................................. 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities................. 65
SECTION 1203. Redemption of Securities for Sinking Fund............................. 66
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS................................................... 66
</TABLE>
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<TABLE>
<S> <C>
SECTION 1301. Applicability of Article.............................................. 66
SECTION 1302. Repayment of Securities............................................... 66
SECTION 1303. Exercise of Option.................................................... 67
SECTION 1304. When Securities Presented for Repayment Become Due and Payable........ 67
SECTION 1305. Securities Repaid in Part............................................. 68
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE................................................... 68
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance............................................................ 68
SECTION 1402. Defeasance and Discharge.............................................. 69
SECTION 1403. Covenant Defeasance................................................... 69
SECTION 1404. Conditions to Defeasance or Covenant Defeasance....................... 70
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions................................................. 71
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES.................................................... 72
SECTION 1501. Purposes for Which Meetings May Be Called............................. 72
SECTION 1502. Call, Notice and Place of Meetings.................................... 72
SECTION 1503. Persons Entitled to Vote at Meetings.................................. 73
SECTION 1504. Quorum; Action........................................................ 73
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings....................................................................... 74
SECTION 1506. Counting Votes and Recording Action of Meetings....................... 75
SECTION 1507. Evidence of Action Taken by Holders................................... 75
SECTION 1508. Proof of Execution of Instruments..................................... 76
</TABLE>
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<PAGE> 6
Liberty Property Limited Partnership, as Obligor
Reconciliation and tie between Trust Indenture Act of 1939 (the
"1939 Act") and this Indenture, dated as of August 14, 1997.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C> <C> <C>
(S) 310 (a) (1)............................................ 607
(a) (2)............................................ 607
(b) ............................................... 607, 608
(S) 312 (c) ............................................... 701
(S) 313 (a) ............................................... 70
(c) ............................................... 702
(S) 314 (a) ............................................... 703
(a) (4)............................................ 1011
(c) (1)............................................ 102
(c) (2)............................................ 102
(e) ............................................... 102
(S) 315 (b) ............................................... 601
(S) 316 (a) (last sentence)................................ 101 ("Outstanding")
(a) (1)(A)......................................... 502, 512
(a) (1)(B)......................................... 513
(b) ............................................... 508
(S) 317 (a) (1)............................................ 503
(a) (2)............................................ 504
(S) 318 (a) ............................................... 111
(c) ............................................... 111
</TABLE>
- ------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318 (c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317
of the 1939 Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
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<PAGE> 7
PARTIES
Indenture (this "Indenture"), dated as of August 14, 1997, by and
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(the "Company") having its principal office at 65 Valley Stream Parkway,
Malvern, Pennsylvania 19355, and The First National Bank of Chicago, a national
banking association, as Trustee hereunder (the "Trustee"), having its Corporate
Trust Office (as defined below) at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (the "Securities") evidencing its unsecured
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Acquisition Lines of Credit" means, collectively, any secured lines of
credit of the Company or any Subsidiary, the proceeds of which shall be used,
among other things, to acquire interests, directly or indirectly, in real
estate.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Adjusted Total Assets" as of any date means the total of all assets
determined in accordance with GAAP plus accumulated depreciation.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the aggregate amount of
any interest expensed for the four consecutive fiscal quarters most recently
ended prior to such date as determined in accordance with GAAP.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
-2-
<PAGE> 9
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Trustees" means the board of trustees of the Trust, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of the Trust, certified
by the Secretary or an Assistant Secretary of the Trust to have been duly
adopted by the Board of Trustees and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"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 Shares" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person other than Preferred Shares.
"Company" means Liberty Property Limited Partnership, a Pennsylvania
limited partnership, until a successor Company shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of and on behalf of the Company by the
Chairman of the Board, the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, the Secretary or an Assistant Secretary of the Trust,
as general partner of the Company, and delivered to the Trustee.
"Consolidated Income Available for Debt Service" as of any date means
Consolidated Net Income of the Company and its Subsidiaries plus amounts that
have been deducted for (a) interest on Debt of the Company and its Subsidiaries,
(b) provision for taxes of the Company and its Subsidiaries based on income, (c)
amortization of debt discount, (d) depreciation and amortization, (e) the effect
of any noncash charge resulting from a change in accounting principles in
determining Consolidated Net Income and (f) amortization of deferred charges,
for the four consecutive fiscal quarters most recently ended, all as determined
in accordance with GAAP, and without taking into account any provision for gains
and losses on properties.
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"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at One First
National Plaza, Suite 0126, Chicago, Illinois 60670, except that for purposes of
Section 1002, such term shall mean the office or agency of the Trustee in the
United Kingdom, which office at the date hereof is located at 27 Leadenhall
Street, London EC3A 1AA; attention: Corporate Trust Administration.
"corporation" includes corporations, associations, companies, real
estate investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money 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) reimbursement obligations in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by the Company or
any Subsidiary as lessee which is reflected on the Company's consolidated
balance sheet as a capitalized lease in accordance with GAAP; but in the case of
items of indebtedness incurred under (i) through (iii) above only to the extent
that any such items (other than letters of credit) would appear as a liability
on the Company's consolidated balance sheet in accordance with GAAP; and also
includes, to the extent not otherwise included, any obligation of the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any person, any capital
stock or partnership interest of such person which by the terms of such capital
stock or partnership interest (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the occurrence
of any event or otherwise: (i) matures or is
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mandatorily redeemable, pursuant to a sinking fund obligation or 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 maturity of the relevant series of
Securities.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time and the
rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
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Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means, in connection with any optional redemption
of any Securities, the excess, if any, of: (i) the aggregate present value as of
the date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such
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dollar if such redemption had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given) from the respective dates on which such principal and
interest would have been payable if such redemption had not been made, to the
date of redemption; over (ii) the aggregate principal amount of the Securities
being redeemed.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Trustees, the President or a Vice-President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Trust,
as general partner of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Trust or the Company and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; provided,
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however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest 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.
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"Preferred Shares" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person that is entitled to a
preference or priority over any other capital stock or shares of beneficial
interest issued by such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means 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 the Securities.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Reinvestment Rate" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to Stated Maturity of the
principal being redeemed (the "Treasury Yield"), plus 0.25%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release under the heading "Week Ending" for "U.S.
Government Securities--Treasury Constant Maturities" with a maturity equal to
such remaining life; provided, that if no published maturity exactly corresponds
to such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities. 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. If
the format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely approximates
the above manner, as reasonably determined by the Company.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer, the controller or any other officer of the Trustee
customarily performing
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functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"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 reports 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.
"Subsidiary" means a corporation, partnership or limited liability
company, a majority of the outstanding voting stock, partnership interests or
membership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Company or by one or more Subsidiaries of the
Company. Liberty Property Development Corp. is a Subsidiary for purposes of this
definition. For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general partners,
managers or trustees, as the case may be, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
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"Trust " means Liberty Property Trust, a self-administered and
self-managed Maryland real estate investment trust and sole general partner of
the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" as of any date means the sum of (i)
the value of those Undepreciated Real Estate Assets not subject to an
encumbrance and (ii) the value of all other assets of the Company and its
Subsidiaries on a consolidated basis not subject to an encumbrance determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, company or other entity created or
organized in or under the laws of the United States or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by
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any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
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
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Outstanding Securities of all series or one or more series, as the case may be,
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
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(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or other 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, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered
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Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer 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 be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Non-Recourse. Notwithstanding anything contained herein to
the contrary, 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 (including, without limitation,
any obligation or indebtedness relating to the principal of, or premium or
Make-Whole Amount, if any, interest or any other amounts due, or claimed to be
due, on any Security issued hereunder), or for any claim based thereon or
otherwise in respect thereof, shall be had (i) against the Trust or any other
partner in the Company, (ii) against any Person which owns an interest, directly
or indirectly, in any partner in the Company or (iii) against any promoter, as
such, or against any past, present or future shareholder, officer, director or
partner, as such, of the Company, the Trust or of any successor, either directly
or through the Company, the Trust 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. The
Holders of the Securities hereunder acknowledge by the acceptance of the
Securities that their sole remedies under this Indenture for any Default by the
Company in the payment of the principal of, or any premium or Make-Whole Amount,
if any, interest or any amounts due, or claimed to be due, on any Security, or
otherwise, are limited to claims against the property of the Company as provided
in Section 503 hereof.
SECTION 112. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment
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Date, Redemption Date, Repayment Date or sinking fund payment date, or at the
Stated Maturity or Maturity, provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with this Indenture, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
to Section 611, the Trustee's certificate of authentication shall be
insubstantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By:
------------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (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
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<PAGE> 24
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 and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear and/or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be
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determined from time to time by the Company with respect to unissued Securities
of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series shall be
payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment Dates on which such
interest will be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium
or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company, if
the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any provision or at the option of a Holder
thereof, and the period or periods within which or the date or dates on which,
the price or prices at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid or purchased
(including without limitation whether, and the extent to which, the premium
shall be payable in connection therewith), in whole or in part, pursuant to such
obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall
be issuable;
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(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in which
payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make- Whole Amount, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity indices or
other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the series
are to be payable, at the election of the Company, or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Securities are denominated or stated to
be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may
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occur, if other than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security, the identity
of the depositary for such series;
(17) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in which,
or the Person to whom, any interest on any Bearer Security of the series shall
be payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);
(23) the terms and conditions, if any, upon which such
Securities may be subordinated to other indebtedness of the Company;
(24) the terms and conditions, if any, for securing all or any
portion of the indebtedness evidenced by the Securities of the series; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such
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Board Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company on behalf of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed by the
Chairman of the Board, and President or one of the Executive Vice Presidents,
and the Chief Financial Officer of the Trust, as general partner of the Company.
The signature of any of these officers on the Securities and coupons may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the Trust
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 and 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
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accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel complying with Section 102
and stating that
(a) the form or forms of such Securities and
any coupons have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the provisions of this
Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights generally and to general equitable principles;
and
(ii) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the knowledge of
the signers of such certificate, no Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
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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 an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary
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Registered Security; and provided further that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a
Board Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company. On
or after the Exchange Date, such temporary global Security shall be surrendered
by the Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security
to be exchanged. The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless
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otherwise specified in such temporary global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security 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
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shall cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any 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
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proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is "DTC", then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to
a successor to DTC for such global Security selected or approved by the Company
or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depositary for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act if so required by applicable
law or regulation, the Company shall appoint a successor depositary with respect
to such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the
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relevant Interest Payment Date, or (ii) any Special Record Date and the opening
of business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company, or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
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therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or
Make-Whole Amount, if any), any interest on and any Additional Amounts with
respect to, Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to the
Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security held
for its account by Cede & Co. or the Common Depositary, as the case may be, for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of its participants
for the benefit 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
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deposit with the Trustee an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each place of payment, but
such publications shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security 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
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(and premium or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company, or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary, its
participants and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by the Company Order, the Company directs their return to it.
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SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 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
(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
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thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee and any predecessor Trustee under Section 606, the obligations of
the Company to any Authenticating Agent under Section 611 and, if money shall
have been deposited with and held by the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or
Make-Whole Amount, if any), and any interest and Additional Amounts for whose
payment such money has deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the making of any sinking fund payment when and
as due by the terms of any Security of that series; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness of the Company, or under any mortgage, indenture or
other instrument of the Company (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any indebtedness of the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor on a full
recourse basis) whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an aggregate principal
amount exceeding $10,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall have
resulted in such indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding Securities
of that series, a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
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(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains unstayed and in effect
for 90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
Title 11 U.S. Code or any similar Federal or State law for the relief of debtors
and the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing (other than an Event of Default
specified in clause (6) or (7) of Section 501 that occurs with respect to the
Company), then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series may
declare the principal of (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof), and premium (if any) and accrued interest on,
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, premium (if any), and accrued interest or
specified portion thereof shall become immediately due and payable. In the event
of a declaration of acceleration because an Event of Default set forth in clause
(5) of Section 501 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (5) along with any
other events of default that have been triggered by the Event of Default
(whether or not a notice or declaration of acceleration shall have been given by
the holders of the relevant indebtedness) shall be remedied or cured by the
Company and/or the relevant Subsidiary or waived by the holders of the relevant
indebtedness within 60 days after the declaration of acceleration with respect
thereto. If an Event of Default specified in clause (6) or (7) of Section 501
occurs with respect to the Company, the principal of (or specified portion
thereof), premium, if any, and accrued interest on the Securities of all series
then outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
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(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium or Make-Whole
Amount, if any, on) any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series at its
Maturity, then the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amount, with interest upon any overdue principal (and premium or Make-Whole
Amount, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest or Additional
Amounts, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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
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final decree, and may enforce the same against the Company, or any other obligor
upon such Securities of such series and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or coupon in
any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or
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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;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the
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Outstanding Securities of that series; it being understood and intended that no
one or more of such Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if any, Interest and Additional
Amounts. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
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Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or Additional Amounts payable in
respect of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of any undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims
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or defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on or any Additional Amounts with
respect to any Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution of the
Board of Trustees may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
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(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the
Securities has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to the Securities such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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, coupons, or any prospectus pursuant to which the Securities are
offered except that the Trustee represents
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that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as mutually agreed upon
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee, its directors, officers
and employees, and any predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
own part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any coupons.
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The provisions of this Section shall survive the termination
of this Indenture
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
the provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 607 and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(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
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others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance or such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, the resigning or removed Trustee or any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such successor Trustee
shall execute, acknowledge and deliver to the Company and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto, pursuant to Article Nine hereof, wherein each
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successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co- trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company, or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities 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.
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SECTION 611. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No
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successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
---------------------------------
as Authenticating Agent
By:
---------------------------------
as Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with TIA Section
312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
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(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or if
the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 704. The Company to Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be furnished to
the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, however, that, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (1) either the Company shall be the continuing entity, or the
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successor entity shall be an entity organized and existing under the laws of the
United States or a State thereof and such successor entity shall expressly
assume the due and punctual payment of the principal of (and premium or
Make-Whole Amount, if any) and any interest (including all Additional Amounts,
if any, payable pursuant to Section 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 entity and (2)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result thereof as having been incurred by the Company or such Subsidiary at the
time 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 Entity. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor entity, except in the
event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities of the same series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
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
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided such provisions shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1011 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared
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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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium (if any),
Make-Whole Amount (if any), Interest and Additional Amounts. The Company
covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium or Make-Whole
Amount, if any) and interest on and any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 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 registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1011) or conversion; provided, however, that if
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the Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, 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) or conversion at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoint the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 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 or Make-Whole
Amount, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying
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Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units
or composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest; and
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(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms 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. Intentionally Omitted.
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 its existence, rights (by partnership agreement and statute)
and franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if it determines that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties. The Company will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Company and its Subsidiaries shall not be prevented from selling or otherwise
disposing of for value its properties in the ordinary course of its business.
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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 insurers
of recognized responsibility and having an A.M. Best policy holder's rating of
not less than A-V.
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 or for which the Company has
set apart and maintains an adequate reserve.
SECTION 1009. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Exchange Act, the
Company will, to the extent permitted under the Exchange Act, file with the
Commission the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to such
Sections 13 or 15(d) if the Company were so subject (the "Financial
Information"), 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 also will in any event (x) within 15 days of each Required Filing Date:
(i) transmit by mail to all Holders of Notes, as their names and addresses
appear in the Security Register, without cost to such Holders, copies of the
Financial Information; and (ii) file with the Trustee copies of the Financial
Information, and (y) if filing such documents by the Company with the Commission
is not permitted under the Exchange Act, promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder.
SECTION 1010. Statement as to Compliance. The Company will, in
accordance with Section 314 of the TIA, 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 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
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series established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal 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 or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 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 1005 to 1009, inclusive, if before or after the time for
such compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article; Redemption to Maintain
REIT Status.
(a) 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.
(b) The Company shall redeem all or a portion of the
Securities of any series as necessary to comply with any requirement for the
Trust's continued qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended.
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 all or 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
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pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without a charge, a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date unless the Company shall default in the payment of
the Redemption Price and any accrued interest thereon,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company and
the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section
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305 or otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one
Business Day prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities convertible into
Common Shares or Preferred Shares, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
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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 by the Company shall not
be so paid upon surrender thereof for redemption by reason of a failure to
comply with Section 1105, the principal (and premium or Make-Whole Amount, if
any) shall, until paid, bear interest from the Redemption Date at the rate borne
by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with
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respect to the Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption) together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such series which
have been redeemed whether at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities, or which have otherwise been acquired by the Company;
provided that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for the
series pursuant to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of such in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the securities of such series) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of an at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that at least one Business Day
prior to the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is
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acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of
the Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security is
to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series that provide for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portion thereof, as the case may be, to be repaid shall become
due and payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any
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Bearer Securities so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in accordance with such
provisions, together with coupons, if any, appertaining thereto maturing after
the Repayment Date, the principal amount of such Security so to be repaid shall
be paid by the Company, together with accrued interest, if any, on the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or prior to
the Repayment Date shall be payable at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but with interest thereon, unless
the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof by reason of a failure
by the Company to comply with this Section 1304, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or
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both of (a) defeasance of the Securities of or within a series under Section
1402 or (b) covenant defeasance of the Securities of or within a series under
Section 1403, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining thereto, elect to
have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to
such Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Securities and any coupons appertaining thereto when such payments
are due, (B) the Company's obligations with respect to such Securities under
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.
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 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
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covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another 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 any case, in an amount, sufficient, without consideration of any reinvestment
of such principal and interest, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or analogous
payments applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company is
a party or by which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
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(d) In the case of an election under Section 1402,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be), registration is
not required under the Investment Company Act of 1940, as amended, by the
Company with respect to the trust funds representing such deposit or by the
Trustee for such trust funds or (ii) all necessary registrations under said Act
have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in
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respect of which such deposit was made is entitled to, and does, elect pursuant
to Section 301 or the terms of such Security to receive payment in a currency or
currency unit other than that in which the deposit pursuant to Section 1404(a)
has been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the currency or currency unit in which the deposit pursuant to
Section 1404(a) has been made, the indebtedness represented by such Security and
any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding,
subject to Section 606, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by 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
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meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company pursuant to a
Board Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series, shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place 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 five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the
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Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specific percentage, which is less than a majority, in
principal amount 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 act that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum require-
ment 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.
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(b) The Trustee shall, by an instrument in writing
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities provided in Section 1502(b),
in which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any
series duly called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting,
and the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Holders of any or 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 and execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this
-75-
<PAGE> 82
Indenture and (subject to Article Six) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Article.
-76-
<PAGE> 83
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, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST, as its sole
general partner
By: /s/ Willard G. Rouse III
--------------------------------
Title:
ATTEST
By: /s/ James J. Bowes
-----------------------------
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
--------------------------------
Title: Vice President
ATTEST
By: /s/ Mark J. Frye
-----------------------
Title: Trust Officer
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<PAGE> 84
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
companies, domestic corporations or any estate or trust the income of which is
subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Liberty Property Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "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.
<PAGE> 85
This certificate excepts and does not relate to [U.S.$] ________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _________________, 19__
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
- -----------------------------------
(Authorized Signatory)
Name:
Title:
-2-
<PAGE> 86
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S. $]
________________________________________________________ principal amount of the
above-captioned Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic companies, domestic corporations or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Liberty Property Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations 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.
<PAGE> 87
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System [Cedel S.A.]
By:
-------------------------------------------
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<PAGE> 88
Exhibit B
---------
OFFICERS' CERTIFICATE
We, ________________________________, Chief Operating Officer,
and ____________________________________________________, Chief Financial
Officer, respectively, of Liberty Property Trust, the General Partner (the
"General Partner") of Liberty Property Limited Partnership (the "Company"),
pursuant to Section 301 of the Indenture dated as of _______, 19__ between the
Company and The First National Bank of Chicago, as Trustee (the "Indenture"),
hereby certify that a series of Securities with the following terms has been
established by a Board Resolution and has been denominated _____________Notes
due (the "Notes"), and we further certify as follows with respect to the Notes
(unless otherwise defined herein, capitalized terms shall have the meanings set
forth in the Indenture):
1. the title of the Notes shall be "__________ Notes due
_____." The Notes constitute a series of Securities as
defined in the Indenture. [The Notes shall be issuable as
Registered Securities in permanent global form only in
denominations of $1,000 or any integral multiple thereof;]
2. the maximum aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture shall be
$_____________ (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in
lieu of other Notes pursuant to Section 304, 305, 306, 906,
1107 or 1305 of the Indenture);
3. the principal amount of the Notes shall be payable on
___________, ____, subject to the provisions of the
Indenture and the Notes;
4. interest will accrue from ________, 1997. The Notes will
bear interest at _____% per annum, payable in the manner and
on the dates set forth in the attached form of Notes;
5. the Corporate Trust Office of The First National Bank of
Chicago is appointed the principal paying agent, transfer
agent, and registrar for the Notes and for the purpose
mentioned in Section 1002 of the Indenture. The Notes may be
presented for payment at maturity or redemption at such
Corporate Trust Office, or at any other agency as may be
appointed by the Company from time to time in The City of
New York;
6. [the provisions of Sections 1402 and 1403 of the Indenture
with regard to defeasance and discharge and covenant
defeasance, respectively, shall be applicable to the Notes
without modification];
<PAGE> 89
7. [the Notes may be redeemed at any time at the option of the
Company, in such manner and upon the terms set forth in the
attached form of Notes and the Indenture;]
8. [the Notes will be represented by one or more Global Notes
as described under the caption "Description of the
Notes--Book Entry System" in the Company's Prospectus
Supplement dated _________, 1997 with respect to the
offering of the Notes (the "Prospectus Supplement")(except
that, in certain limited circumstances, the Company may
issue Notes in definitive form to owners of beneficial
interests in a Global Note, as described in the
above-referenced section of the Prospectus Supplement);]
9. the Notes shall have such other terms and conditions as are
set forth in the form of the Notes. The Notes shall be
subject to the provisions of the Indenture; and
10. the attached form of the Notes is in the form approved
pursuant to authority granted by the Board of Directors.
This Certificate is delivered pursuant to the provisions of
Sections 201, 301, and 303 of the Indenture. The undersigned hereby certify as
follows:
(a) we have read each of the Sections of the Indenture
referred to above;
(b) we have examined the Indenture, the form of Notes and
such other documents, records, and instruments as we
have deemed necessary for purposes of giving this
certificate;
(c) to the best of our knowledge, no Event of Default with
respect to the Notes has occurred and is continuing;
(d) in our opinion, we have made such examination and
investigation as is necessary to enable us to express
an informed opinion as to whether the conditions
precedent to the issuance of the Notes have been
complied with; and
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<PAGE> 90
(e) in our opinion, the conditions precedent to the
issuance of the Notes have been complied with.
Dated: __________, 1997 Liberty Property Limited Partnership
by: Liberty Property Trust
By:
---------------------------------------------
Chief Operating Officer
By:
---------------------------------------------
Chief Financial Officer
-3-
<PAGE> 91
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR
ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A
NOMINEE OF SUCH SUCCESSOR.
REGISTERED
REGISTERED
No. Principal
Amount
CUSIP No.
$
LIBERTY PROPERTY LIMITED PARTNERSHIP
_________Notes due________
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, upon presentation, the principal sum of ____________
Dollars ($______________ ) on __________, __________, and to pay interest
thereon from ___________, ___________ (or from the most recent Interest Payment
Date to which interest has been paid or duly provided for), semi-annually in
arrears on ____________ and ____________ of each year, commencing on _______,
199__, and at Maturity, at a rate of ______% interest of % per annum, until
payment of said principal sum has been made or duly provided for. Any
capitalized term not defined herein shall have the meaning assigned to it in
that certain Indenture by and among the Issuer and The First National Bank of
Chicago, a ____________________, dated as of ___________, 199___.
<PAGE> 92
The interest so payable and punctually paid or duly provided
for on an Interest Payment Date and at Maturity will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the Regular Record Date for such payment, which will be 15
calendar days (regardless of whether such day is a Business Day) next preceding
such Interest Payment Date or Maturity, as the case may be. Any 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 Holder in
whose name this Note (or one or more predecessor Notes) 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
Notes of this series not less than ten (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 or which the Notes of this
series may be listed, and upon such notice as may be required by such exchange,
as more fully provided in the Indenture.
The principal and Make-Whole Amount, if any, of this Note
payable at Maturity will be paid against presentation and surrender of this Note
at the office or agency of the Issuer maintained for that purpose in The Borough
of Manhattan, The City of New York. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee in The City of New York as the office to
be maintained by it where Notes may be presented for payment, registration of
transfer or exchange and where notices or demands to or upon the Issuer in
respect of the Notes or the Indenture may be served.
Interest payable on this Note will be computed on the basis of
a 360-day year consisting of twelve 30-day months. If any Interest Payment Date
or Maturity would otherwise be a day that is not a Business Day, the required
payment will be made on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
[Notes of this series may be redeemed at any time at the
option of the Issuer, in whole or in part, upon notice to the Holders 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 Notes being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount, if any, with respect to such Notes.]
Payments of principal, Make-Whole Amounts, if any, and
interest in respect of this Note will be made by wire transfer of immediately
available funds, in such coin or currency as at the time of payment is legal
tender for the payment of public and private debts, so long as this Note is in
global form as described in Section 203 of the Indenture. If this Note is not in
global form, all such payments will be made by wire transfer of immediately
available funds if the Holder hereof at the applicable record date shall have
provided wire transfer instructions to the Trustee, received by the Trustee no
later than fifteen (15) days prior to the applicable payment date, and otherwise
payment shall be made in accordance with Section 307 of the Indenture. Such wire
transfer instructions shall remain in effect until revoked in a writing received
by the Trustee from the Holder hereof.
-2-
<PAGE> 93
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.
This Note shall not be entitled to the benefits of the
Indenture referred to on the reverse hereof or be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its duly authorized officers.
Dated:____________, 1997 LIBERTY PROPERTY LIMITED PARTNERSHIP, as
Issuer
By: LIBERTY PROPERTY TRUST, not individually
but as General Partner
By:
-----------------------------------------
By:
-----------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated:_____________ THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------------------
Authorized Signatory
-3-
<PAGE> 94
[FORM OF REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
_______ % ________ Notes due ________
This security is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under an Indenture dated as of , 1997 (the "Indenture"), between the
Issuer and The First National Bank of Chicago, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the series of Securities of which this Note is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary
provided in the Indenture. This Security is one of a series designated on the
first page hereof, limited in aggregate principal amount to $ .
In case an Event of Default with respect to Securities of this
series shall have occurred and be continuing, the principal of, and premium or
Make-Whole Amount, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect, and subject to the
conditions provided in the Indenture.
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 (i) such Holder shall have previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Outstanding Securities of this series, (ii) the Holders of not
less than 25% in principal amount of the Outstanding Securities of this 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, (iii) such Holder
or Holders have offered reasonable indemnity to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity and (v) the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such
request.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer 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 at
least a majority in principal amount of the Securities of such series
Outstanding, on behalf of the Holders of all Securities of such series, to
<PAGE> 95
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holders 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 Issuer,
which is absolute and unconditional, to pay the principal of, premium or
Make-Whole Amount, if any, 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 Issuer in any Place of Payment where the
principal of, premium or 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 Issuer 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 registration of
transfer or exchange of Securities of this series, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. [In no event shall the Issuer be required to
pay any Additional Amounts as contemplated by the Indenture.]
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee may treat the Person in whose name this Security is registered as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, the Trustee or any
authorized agent of the Issuer or the Trustee shall be affected by any notice to
the contrary.
Notwithstanding anything contained herein or in the Indenture
to the contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby (including without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Security), or for any
claim based thereon or otherwise in respect thereof, shall be had (i) against
the Trust or any other
-2-
<PAGE> 96
partner in the Issuer, (ii) against any person which owns an interest, directly
or indirectly, in any partner in the Issuer or (iii) against any promoter, as
such, or against any past, present or future stockholder, partner, officer or
director, as such, of the Issuer or of any successor, either directly or through
the Issuer or any successor, under any rule of law, statute or constitutional
provisions 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 this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series. The Holder of this
Security acknowledges by acceptance of this Security that its sole remedies
under the Indenture for any Default by the Issuer in the payment of the
principal of, or any premium or Make-Whole Amount, if any, interest or any
amounts due, or claimed to be due, on this Security, or otherwise, are limited
to claims against the property of the Issuer as provided in Sections 111 and 503
of the Indenture.
THE INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A
CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE
REQUIRED BY MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer 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.
Terms used herein that are defined in the Indenture shall have
the respective meanings assigned them in the Indenture.
-3-
<PAGE> 97
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>
<CAPTION>
<S> <C> <C>
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties ______Custodian _______________
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to
tenants in common Act _____________ 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:
---------------
-------------------------------
-4-
<PAGE> 1
EXHIBIT 10.2
================================================================================
LIBERTY PROPERTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
-----------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 14, 1997
-----------
$100,000,000 7.10% SENIOR NOTES DUE 2004
$100,000,000 7.25% SENIOR NOTES DUE 2007
-----------
SUPPLEMENT TO INDENTURE,
DATED AS OF AUGUST 14, 1997, BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
================================================================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of August 14, 1997,
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(the "Issuer"), having its principal offices at 65 Valley Stream Parkway,
Malvern, Pennsylvania 19355, and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association organized under the laws of the United States of America, as
trustee (the "Trustee"), having its Corporate Trust Office at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of August 14, 1997, to the Trustee to issue from
time to time for its lawful purposes debt securities evidencing its unsecured
indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Supplemental Indenture to
(i) create a series of debt securities, in an aggregate principal amount not to
exceed $100,000,000, entitled "Liberty Property Limited Partnership 7.10% Senior
Notes due 2004" (the "2004 Notes"); (ii) create a series of debt securities, in
an aggregate principal amount not to exceed $100,000,000, entitled "Liberty
Property Limited Partnership 7.25% Senior Notes due 2007" (the "2007 Notes, and
together with the 2004 Notes, the "Notes"); and (iii) establish the form and the
terms and conditions of such Notes.
WHEREAS, the Board of Trustees of Liberty Property Trust, the
general partner of the Issuer, has approved the creation of the Notes and the
form, terms and conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery
of this Supplemental Indenture is not required, and all other actions required
to be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT
SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A or
Exhibit B attached hereto.
2
<PAGE> 3
"INDENTURE" means the Original Indenture as supplemented by
this First Supplemental Indenture.
"INTERCOMPANY DEBT" means Debt to which the only parties are
the Trust, any of its subsidiaries, the Issuer and any Subsidiary, or Debt owed
to the Trust arising from routine cash management practices, but only so long as
such Debt is held solely by any of the Trust, any of its subsidiaries, the
Issuer and any Subsidiary.
"NOTES" means the 2004 Notes together with the 2007 Notes.
"2004 NOTES" means the Issuer's 7.10% Senior Notes due August
15, 2004, a form of which is attached hereto as Exhibit A.
"2007 NOTES" means the Issuer's 7.25% Senior Notes due August
15, 2007, a form of which is attached hereto as Exhibit B.
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Issuer hereby creates each of the
2004 Notes and the 2007 Notes as separate series of its debt securities issued
pursuant to the Indenture. The 2004 Notes shall be issued in an aggregate
principal amount not to exceed $100,000,000. The 2007 Notes shall be issued in
an aggregate principal amount not to exceed $100,000,000.
SECTION 1.03 FORM OF THE DEBT SECURITIES. Each series of Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The 2004 Notes shall be
in the form of Exhibit A attached hereto and the 2007 Notes shall be in the form
of Exhibit B attached hereto. So long as DTC, or its nominee, is the registered
owner of a Global Note, DTC or its nominee, as the case may be, will be
considered the sole owner or holder of the notes represented by such Global Note
for all purposes under the Indenture. Ownership of beneficial interests in the
Global Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants or persons that hold interests through
participants (with respect to beneficial interests of beneficial owners).
SECTION 1.04 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) Optional Redemption. The Issuer may redeem the Notes of
either or both series at any time at the option of the Issuer, in whole or from
time to time in part, at a redemption price equal to the Redemption Price.
If notice of redemption has been given as provided in the Original
Indenture and funds for the redemption of any Notes called for redemption shall
have been made available on the
3
<PAGE> 4
Redemption Date referred to in such notice, such Notes will cease to bear
interest on the date fixed for such redemption specified in such notice and the
only right of the Holders of such Notes from and after the Redemption Date will
be to receive payment of the Redemption Price upon surrender of such Notes in
accordance with such notice.
Notice of any optional redemption of any Notes will be given to Holders
at their addresses, as shown in the security register for the Notes, not more
than 60 nor less than 30 days prior to the date fixed for redemption. The notice
of redemption will specify, among other items, the Redemption Price and the
principal amount of the Notes held by such Holder to be redeemed.
If all or less than all of the Notes of any series are to be redeemed
at the option of the Issuer, the Issuer will notify the Trustee at least 45 days
prior to giving notice of redemption (or such shorter period as is satisfactory
to the Trustee) of the aggregate principal amount of Notes to be redeemed, if
less than all of the Notes of any series are to be redeemed, and their
Redemption Date. The Trustee shall select, in such manner as it shall deem fair
and appropriate, no less than 60 days prior to the date of redemption, the Notes
to be redeemed in whole or in part.
(b) Payment of Principal and Interest. Principal and interest payments
on interests represented by a Global Note will be made to DTC or its nominee, as
the case may be, as the registered owner of such Global Note. All payments of
principal and interest in respect of the Notes will be made by the Issuer in
immediately available funds.
(c) Applicability of Defeasance or Covenant Defeasance. The provisions
of Article 14 of the Original Indenture shall apply to the Notes.
ARTICLE TWO
ADDITIONAL COVENANTS
The Notes shall be governed by all the covenants contained in the
Original Indenture, as supplemented by this First Supplemental Indenture, and in
particular, this First Supplemental Indenture amends Section 1004 of the
Original Indenture to read as follows:
"SECTION 1004. Limitations on Incurrence of Debt.
(a) The Issuer will not, and will not permit any Subsidiary to, incur
any Debt, other than Intercompany Debt, that is subordinate in right of payment
to the Notes, if, immediately after giving effect to the incurrence of such Debt
and the application of the proceeds thereof, the aggregate principal amount of
all outstanding Debt of the Issuer and its Subsidiaries on a consolidated basis
determined in accordance with GAAP is greater than 60% of the sum of (i) the
Issuer's Adjusted Total Assets as of the end of the most recent fiscal quarter
prior to the incurrence of such additional Debt and (ii) the increase in
Adjusted Total Assets since the end of such quarter (including any increase
resulting from the incurrence of additional Debt).
4
<PAGE> 5
(b) The Issuer will not, and will not permit any Subsidiary to, incur
any Debt if the ratio of Consolidated Income Available for Debt Service to the
Annual Service Charge on the date on which such additional Debt is to be
incurred would 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.
(c) The Issuer will not, and will not permit any Subsidiary to, incur
any Debt secured by any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the properties of the Issuer or any Subsidiary
("Secured Debt"), whether owned at the date hereof or hereafter acquired, if,
immediately after giving effect to the incurrence of such Secured Debt and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Secured Debt of the Issuer and its Subsidiaries on a consolidated
basis is greater than 40% of the sum of (i) the Issuer's Adjusted Total Assets
as of the end of the most recent fiscal quarter prior to the incurrence of such
additional Debt and (ii) the increase in Adjusted Total Assets since the end of
such quarter (including any increase resulting from the incurrence of additional
Debt).
(d) The Issuer will at all time maintain an Unencumbered Total Asset
Value in an amount not less than 150% of the aggregate principal amount of all
outstanding unsecured Debt of the Issuer and its Subsidiaries on a consolidated
basis.
For purposes of the foregoing provisions regarding the limitation
on the incurrence of Debt, Debt shall be deemed to be "incurred" by the Issuer
or a Subsidiary whenever the Issuer or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof."
ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer,
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
5
<PAGE> 6
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act, that are required to be part of this Supplemental Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
6
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
as its sole General Partner
By: /s/ Joseph P. Denny
----------------------------
Name: Joseph P. Denny
Title: President, Chief
Operating Officer
Attest:
/s/ James J. Bowes
- -------------------------------
Name: James J. Bowes
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
--------------------------------------
Name: John R. Prendiville
Title: Vice President
Attest:
/s/ Mark J. Frye
- -------------------------------
Name: Mark J. Frye
Title:
<PAGE> 8
STATE OF PA )
)s:
COUNTY OF CHESTER )
On the 14th day of August 1997, before me personally came
Joseph P. Denny, to me known, who, being by me duly sworn, did depose and
say that he/she resides at 65 Valley Stream Parkway, that he/she is
President & COO of LIBERTY PROPERTY TRUST, the sole general partner of LIBERTY
PROPERTY LIMITED PARTNERSHIP, 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 Trustees.
/s/ Suzanne J. Meyle
------------------------------------
Notary Public
COMMISSION EXPIRES
[ NOTARIAL SEAL
APPEARS ]
<PAGE> 9
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 14th day of August 1997, before me personally came
John R. Prendiville, to me known, who, being by me duly sworn, did depose and
say that he/she resides at Wheaton, Illinois, that he/she is a Vice President
of THE FIRST NATIONAL BANK OF CHICAGO, 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.
/s/ Dana McCray
------------------------------------
Notary Public
COMMISSION EXPIRES
[NOTARIAL SEAL APPEARS]
<PAGE> 10
EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [__________] PRINCIPAL AMOUNT
CUSIP NO. [___________] $100,000,000
LIBERTY PROPERTY LIMITED PARTNERSHIP
7.10% SENIOR NOTES DUE 2004
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or its registered assigns, the principal sum of One Hundred Million Dollars
on August 15, 2004 (the "Maturity Date"), and to pay interest thereon from
August 19, 1997 (or from the most recent interest payment date to which interest
has been paid or duly provided for), semi-annually in arrears on February 15 and
August 15 of each year (each, an "Interest Payment Date"), commencing on
February 15, 1998, and on the Maturity Date, at the rate of 7.10% per annum,
until payment of said principal sum has been made or duly provided for.
A-1
<PAGE> 11
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the "Record Date" for such payment, which will be 15
days (regardless of whether such day is a Business Day (as defined below)) prior
to such payment date or the Maturity Date, as the case may be. Any interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such record date, and shall be paid to the Holder in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on a subsequent 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 payment of such defaulted interest) established by notice given by
mail by or on behalf of the Issuer to the Holders of the Notes not less than 10
days preceding such subsequent record date. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the corporate trust
office of the Trustee at One First National Plaza, Chicago, Illinois 60670-0126,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public or private debt.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including August 19, 1997, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any Interest Payment Date or the Maturity Date falls on a day
that is not a Business Day (as defined below), the required payment of interest
or principal or both, as the case may be, will be made on the next Business Day
with the same force and effect as if it were made on the date such payment was
due and no interest will accrue on the amount so payable for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be.
"Business Day" means any day, other than a Saturday or a Sunday, that is neither
a legal holiday nor a day on which banking institutions in The City of New York
or Chicago are authorized or required by law, regulation or executive order to
close.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture referred to on the reverse hereof or be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under such Indenture.
A-2
<PAGE> 12
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated: August __, 1997
LIBERTY PROPERTY LIMITED PARTNERSHIP,
as Issuer
By: LIBERTY PROPERTY TRUST,
as its sole General Partner
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
A-3
<PAGE> 13
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
--------------------------------
Authorized Officer
A-4
<PAGE> 14
[REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
7.10% SENIOR NOTES DUE 2004
This security is one of a duly authorized issue of debentures,
notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an Indenture dated as of August 14, 1997 (herein
called the "Indenture"), duly executed and delivered by the Issuer to The First
National Bank of Chicago, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
Securities of which this Note is a part), to which Indenture and all indentures
supplemental thereto relating to this security reference is hereby made for a
description of the rights, limitations of rights, obligations, duties, and
immunities thereunder of the Trustee, the Issuer, and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary as
provided in the Indenture or any indenture supplemental thereto. This security
is one of a series designated as the 7.10% Notes due August 15, 2004 of the
Issuer, limited in aggregate principal amount to $100,000,000.
In case an Event of Default with respect to this security
shall have occurred and be continuing, the principal hereof and Make-Whole
Amount, if any, may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Issuer may redeem this security at any time at the option
of the Issuer, in whole or from time to time in part, at a redemption price
equal to the sum of (i) the principal amount of this security being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount, if any, with respect to this security. Notice of any optional redemption
of any Securities will be given to Holders at their addresses, as shown in the
security register for the Securities, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will specify,
among other items, the Redemption Price and the principal amount of the
Securities held by such Holder to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Security
so affected, (i) change the Stated Maturity of the principal of (or
A-5
<PAGE> 15
premium or Make-Whole Amount, if any, on) or any installment of interest on, any
such Security; (ii) reduce the principal amount of, or the rate or amount of
interest on, or any premium payable on redemption of the Securities, or
adversely affect any right of repayment of the Holder of any Securities; (iii)
change the place of payment, or the coin or currency, for payment of principal
or premium, if any, or interest on the Securities; (iv) impair the right to
institute suit for the enforcement of any payment on or with respect to the
Securities on or after the stated maturity of any such Security; (v) reduce the
above-stated percentage in principal amount of outstanding Securities, the
consent of whose Holders is necessary to modify or amend the Indenture, for any
waiver with respect to the Securities, or to waive compliance with certain
provisions of the Indenture or certain defaults or consequences thereunder or to
reduce the quorum or voting requirement set forth in the Indenture; or (vi)
modify any of the foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions of the Indenture may not be modified or waived without the consent of
the Holder of each Security. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the Securities of any
series, the Holders of a majority in aggregate principal amount outstanding of
the Securities of such series (or, in the case of certain defaults or Events of
Default, all series of Securities) may on behalf of the Holders of all the
Securities of such series (or all of the Securities, as the case may be) waive
any such past default or Event of Default and its consequences, prior to any
declaration accelerating the maturity of such Securities, or, subject to certain
conditions, may rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Security
and any Securities that may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this Security
or such other Securities.
No reference herein to the Indenture and no provision of this
security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and any Make-Whole
Amount and interest on this security in the manner, at the respective times, at
the rate and in the coin or currency herein prescribed.
This security is issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof. Securities
may be exchanged for a like aggregate principal amount of securities of this
series of other authorized denominations at the office or agency of the Issuer
in The Borough of Manhattan, The City of New York, in the manner and subject to
the limitations provided in the Indenture, but without the payment of any
service charge except for any tax or other governmental charge imposed in
connection therewith.
Upon due presentment for registration of transfer of
Securities at the office or agency of the Issuer in The Borough of Manhattan,
The City of New York, one or more new Securities of the same series of
authorized denominations in an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
A-6
<PAGE> 16
The Issuer, the Trustee or any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this security is
registered as the absolute owner of this security (whether or not this security
shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and Make-Whole Amount, if any, and subject to the provisions on
the face hereof, interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
The Indenture and each Security shall be deemed to be a
contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such state, except as may otherwise be
required by mandatory provisions of law.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this security.
A-7
<PAGE> 17
EXHIBIT B
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. [__________] PRINCIPAL AMOUNT
CUSIP NO. [__________] $100,000,000
LIBERTY PROPERTY LIMITED PARTNERSHIP
7.25% SENIOR NOTES DUE 2007
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or its registered assigns, the principal sum of One Hundred Million Dollars
on August 15, 2007 (the "Maturity Date"), and to pay interest thereon from
August 19, 1997 (or from the most recent interest payment date to which interest
has been paid or duly provided for), semi-annually in arrears on February 15 and
August 15 of each year (each, an "Interest Payment Date"), commencing on
February 15, 1998, and on the Maturity Date, at the rate of 7.25% per annum,
until payment of said principal sum has been made or duly provided for.
B-1
<PAGE> 18
The interest so payable and punctually paid or duly provided
for on any Interest Payment Date and on the Maturity Date will be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the "Record Date" for such payment, which will be 15
days (regardless of whether such day is a Business Day (as defined below)) prior
to such payment date or the Maturity Date, as the case may be. Any interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such record date, and shall be paid to the Holder in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on a subsequent 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 payment of such defaulted interest) established by notice given by
mail by or on behalf of the Issuer to the Holders of the Notes not less than 10
days preceding such subsequent record date. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the corporate trust
office of the Trustee at One First National Plaza, Chicago, Illinois 60670-0126,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public or private debt.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including August 19, 1997, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any Interest Payment Date or the Maturity Date falls on a day
that is not a Business Day (as defined below), the required payment of interest
or principal or both, as the case may be, will be made on the next Business Day
with the same force and effect as if it were made on the date such payment was
due and no interest will accrue on the amount so payable for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be.
"Business Day" means any day, other than a Saturday or a Sunday, that is neither
a legal holiday nor a day on which banking institutions in The City of New York
or Chicago are authorized or required by law, regulation or executive order to
close.
Payments of principal and interest in respect of this Note
will be made by wire transfer of immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the
Indenture referred to on the reverse hereof or be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under such Indenture.
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<PAGE> 19
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its authorized officers.
Dated: August __, 1997
LIBERTY PROPERTY LIMITED PARTNERSHIP,
as Issuer
By: LIBERTY PROPERTY TRUST,
as its sole General Partner
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
B-3
<PAGE> 20
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
--------------------------------
Authorized Officer
B-4
<PAGE> 21
[REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
7.25% SENIOR NOTES DUE 2007
This security is one of a duly authorized issue of debentures,
notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an Indenture dated as of August 14, 1997 (herein
called the "Indenture"), duly executed and delivered by the Issuer to The First
National Bank of Chicago, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
Securities of which this Note is a part), to which Indenture and all indentures
supplemental thereto relating to this security reference is hereby made for a
description of the rights, limitations of rights, obligations, duties, and
immunities thereunder of the Trustee, the Issuer, and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary as
provided in the Indenture or any indenture supplemental thereto. This security
is one of a series designated as the 7.25% Notes due August 15, 2007 of the
Issuer, limited in aggregate principal amount to $100,000,000.
In case an Event of Default with respect to this security
shall have occurred and be continuing, the principal hereof and Make-Whole
Amount, if any, may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect, and subject to the conditions provided
in the Indenture.
The Issuer may redeem this security at any time at the option
of the Issuer, in whole or from time to time in part, at a redemption price
equal to the sum of (i) the principal amount of this security being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount, if any, with respect to this security. Notice of any optional redemption
of any Securities will be given to Holders at their addresses, as shown in the
security register for the Securities, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will specify,
among other items, the Redemption Price and the principal amount of the
Securities held by such Holder to be redeemed.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time Outstanding of all
series to be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Security
so affected, (i) change the Stated Maturity of the principal of (or
B-5
<PAGE> 22
premium, if any, on) or any installment of principal of or interest on, any such
Security; (ii) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of the Securities, or adversely affect
any right of repayment of the Holder of any Securities; (iii) change the place
of payment, or the coin or currency, for payment of principal or premium, if
any, or interest on the Securities; (iv) impair the right to institute suit for
the enforcement of any payment on or with respect to the Securities on or after
the stated maturity of any such Security; (v) reduce the above-stated percentage
in principal amount of outstanding Securities, the consent of whose Holders is
necessary to modify or amend the Indenture, for any waiver with respect to the
Securities, or to waive compliance with certain provisions of the Indenture or
certain defaults or consequences thereunder or to reduce the quorum or voting
requirement set forth in the Indenture; or (vi) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions of the Indenture
may not be modified or waived without the consent of the Holder of each
Security. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, the
Holders of a majority in aggregate principal amount outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all series of Securities) may on behalf of the Holders of all the
Securities of such series (or all of the Securities, as the case may be) waive
any such past default or Event of Default and its consequences, prior to any
declaration accelerating the maturity of such Securities, or, subject to certain
conditions, may rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Security
and any Securities that may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this Security
or such other Securities.
No reference herein to the Indenture and no provision of this
security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and any Make-Whole
Amount and interest on this security in the manner, at the respective times, at
the rate and in the coin or currency herein prescribed.
This security is issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof. Securities
may be exchanged for a like aggregate principal amount of securities of this
series of other authorized denominations at the office or agency of the Issuer
in The Borough of Manhattan, The City of New York, in the manner and subject to
the limitations provided in the Indenture, but without the payment of any
service charge except for any tax or other governmental charge imposed in
connection therewith.
Upon due presentment for registration of transfer of
Securities at the office or agency of the Issuer in The Borough of Manhattan,
The City of New York, one or more new Securities of the same series of
authorized denominations in an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
B-6
<PAGE> 23
The Issuer, the Trustee or any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this security is
registered as the absolute owner of this security (whether or not this security
shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof and Make-Whole Amount, if any, and subject to the provisions on
the face hereof, interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
The Indenture and each Security shall be deemed to be a
contract under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such state, except as may otherwise be
required by mandatory provisions of law.
Capitalized terms used herein which are not otherwise defined
shall have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this security.
B-7
<PAGE> 24
<PAGE> 1
EXHIBIT 10.3
LIBERTY PROPERTY LIMITED PARTNERSHIP,
AS OBLIGOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
-----------------------
SENIOR INDENTURE
DATED AS OF OCTOBER 24, 1997
-------------------------------------------
Debt Securities
-------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES.................................................................................... 1
RECITALS OF THE COMPANY.................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................. 1
SECTION 101. Definitions............................................................ 1
SECTION 102. Compliance Certificates and Opinions................................... 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
SECTION 110. Benefits of Indenture.................................................. 16
SECTION 111. Non-Recourse........................................................... 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..................................... 17
ARTICLE THREE
THE SECURITIES....................................................................... 18
SECTION 301. Amount Unlimited; Issuable in Series................................... 18
SECTION 302. Denominations.......................................................... 22
SECTION 303. Execution, Authentication, Delivery and Dating......................... 22
SECTION 304. Temporary Securities................................................... 24
SECTION 305. Registration, Registration of Transfer and Exchange.................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................... 29
SECTION 307. Payment of Interest; Interest Rights Preserved......................... 31
SECTION 308. Persons Deemed Owners.................................................. 32
SECTION 309. Cancellation........................................................... 33
SECTION 310. Computation of Interest................................................ 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE........................................................... 34
SECTION 401. Satisfaction and Discharge of Indenture................................ 34
SECTION 402. Application of Trust Funds............................................. 35
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE FIVE
REMEDIES............................................................................. 35
SECTION 501. Events of Default...................................................... 35
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................... 37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........ 38
SECTION 504. Trustee May File Proofs of Claim....................................... 39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons........................................................................ 39
SECTION 506. Application of Money Collected......................................... 40
SECTION 507. Limitation on Suits.................................................... 40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-
Whole Amount, if any, Interest and Additional Amounts.......................... 41
SECTION 509. Restoration of Rights and Remedies..................................... 41
SECTION 510. Rights and Remedies Cumulative......................................... 41
SECTION 511. Delay or Omission Not Waiver........................................... 41
SECTION 512. Control by Holders of Securities....................................... 41
SECTION 513. Waiver of Past Defaults................................................ 42
SECTION 514. Waiver of Usury, Stay or Extension Laws................................ 42
SECTION 515. Undertaking for Costs.................................................. 42
ARTICLE SIX
THE TRUSTEE.......................................................................... 43
SECTION 601. Notice of Defaults..................................................... 43
SECTION 602. Certain Rights of Trustee.............................................. 43
SECTION 603. Not Responsible for Recitals or Issuance of Securities................. 44
SECTION 604. May Hold Securities.................................................... 45
SECTION 605. Money Held in Trust.................................................... 45
SECTION 606. Compensation and Reimbursement......................................... 45
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests......... 46
SECTION 608. Resignation and Removal; Appointment of Successor...................... 46
SECTION 609. Acceptance of Appointment by Successor................................. 47
SECTION 610. Merger, Conversion, Consolidation or Succession to Business............ 48
SECTION 611. Appointment of Authenticating Agent.................................... 49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................... 50
SECTION 701. Disclosure of Names and Addresses of Holders........................... 50
SECTION 702. Reports by Trustee..................................................... 50
SECTION 703. Reports by Company..................................................... 50
SECTION 704. The Company to Furnish Trustee Names and Addresses of Holders.......... 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE..................................... 51
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions............................ 51
</TABLE>
-iii-
<PAGE> 4
<TABLE>
<S> <C>
SECTION 802. Rights and Duties of Successor Entity.................................. 52
SECTION 803. Officers' Certificate and Opinion of Counsel........................... 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES.............................................................. 53
SECTION 901. Supplemental Indentures Without Consent of Holders..................... 53
SECTION 902. Supplemental Indentures with Consent of Holders........................ 54
SECTION 903. Execution of Supplemental Indentures................................... 55
SECTION 904. Effect of Supplemental Indentures...................................... 55
SECTION 905. Conformity with Trust Indenture Act.................................... 55
SECTION 906. Reference in Securities to Supplemental Indentures..................... 55
SECTION 907. Notice of Supplemental Indentures...................................... 56
ARTICLE TEN
COVENANTS............................................................................ 56
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount (if any),
Interest and Additional Amounts................................................ 56
SECTION 1002. Maintenance of Office or Agency....................................... 56
SECTION 1003. Money for Securities Payments to Be Held in Trust..................... 58
SECTION 1004. Intentionally Omitted................................................. 59
SECTION 1005. ...................................................................... 59
SECTION 1006. Maintenance of Properties............................................. 59
SECTION 1007. Insurance............................................................. 60
SECTION 1008. Payment of Taxes and Other Claims..................................... 60
SECTION 1009. Provision of Financial Information.................................... 60
SECTION 1010. Statement as to Compliance............................................ 60
SECTION 1011. Additional Amounts.................................................... 60
SECTION 1012. Waiver of Certain Covenants........................................... 61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES............................................................. 62
SECTION 1101. Applicability of Article; Redemption to Maintain REIT Status.......... 62
SECTION 1102. Election to Redeem; Notice to Trustee................................. 62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..................... 62
SECTION 1104. Notice of Redemption.................................................. 62
SECTION 1105. Deposit of Redemption Price........................................... 64
SECTION 1106. Securities Payable on Redemption Date................................. 64
SECTION 1107. Securities Redeemed in Part........................................... 65
ARTICLE TWELVE
SINKING FUNDS........................................................................ 65
SECTION 1201. Applicability of Article.............................................. 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities................. 65
SECTION 1203. Redemption of Securities for Sinking Fund............................. 66
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS................................................... 66
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
SECTION 1301. Applicability of Article.............................................. 66
SECTION 1302. Repayment of Securities............................................... 66
SECTION 1303. Exercise of Option.................................................... 67
SECTION 1304. When Securities Presented for Repayment Become Due and Payable........ 67
SECTION 1305. Securities Repaid in Part............................................. 68
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE................................................... 68
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance............................................................ 68
SECTION 1402. Defeasance and Discharge.............................................. 69
SECTION 1403. Covenant Defeasance................................................... 69
SECTION 1404. Conditions to Defeasance or Covenant Defeasance....................... 70
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions................................................. 71
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES.................................................... 72
SECTION 1501. Purposes for Which Meetings May Be Called............................. 72
SECTION 1502. Call, Notice and Place of Meetings.................................... 72
SECTION 1503. Persons Entitled to Vote at Meetings.................................. 73
SECTION 1504. Quorum; Action........................................................ 73
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings....................................................................... 74
SECTION 1506. Counting Votes and Recording Action of Meetings....................... 75
SECTION 1507. Evidence of Action Taken by Holders................................... 75
SECTION 1508. Proof of Execution of Instruments..................................... 76
</TABLE>
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<PAGE> 6
Liberty Property Limited Partnership, as Obligor
Reconciliation and tie between Trust Indenture Act of 1939 (the
"1939 Act") and this Indenture, dated as of August 14, 1997.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C> <C> <C>
(S) 310 (a) (1)............................................ 607
(a) (2)............................................ 607
(b) ............................................... 607, 608
(S) 312 (c) ............................................... 701
(S) 313 (a) ............................................... 70
(c) ............................................... 702
(S) 314 (a) ............................................... 703
(a) (4)............................................ 1011
(c) (1)............................................ 102
(c) (2)............................................ 102
(e) ............................................... 102
(S) 315 (b) ............................................... 601
(S) 316 (a) (last sentence)................................ 101 ("Outstanding")
(a) (1)(A)......................................... 502, 512
(a) (1)(B)......................................... 513
(b) ............................................... 508
(S) 317 (a) (1)............................................ 503
(a) (2)............................................ 504
(S) 318 (a) ............................................... 111
(c) ............................................... 111
</TABLE>
- ------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318 (c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317
of the 1939 Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
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<PAGE> 7
PARTIES
Indenture (this "Indenture"), dated as of October 24, 1997, by and
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(the "Company") having its principal office at 65 Valley Stream Parkway,
Malvern, Pennsylvania 19355, and The First National Bank of Chicago, a national
banking association, as Trustee hereunder (the "Trustee"), having its Corporate
Trust Office (as defined below) at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (the "Securities") evidencing its unsecured
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Acquisition Lines of Credit means, collectively, any secured lines of
credit of the Company or any Subsidiary, the proceeds of which shall be used,
among other things, to acquire interests, directly or indirectly, in real
estate.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Adjusted Total Assets" as of any date means the total of all assets
determined in accordance with GAAP plus accumulated depreciation.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the aggregate amount of
any interest expensed for the four consecutive fiscal quarters most recently
ended prior to such date as determined in accordance with GAAP.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
-2-
<PAGE> 9
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Trustees" means the board of trustees of the Trust, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of the Trust, certified
by the Secretary or an Assistant Secretary of the Trust to have been duly
adopted by the Board of Trustees and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"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 Shares" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person other than Preferred Shares.
"Company" means Liberty Property Limited Partnership, a Pennsylvania
limited partnership, until a successor Company shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of and on behalf of the Company by the
Chairman of the Board, the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, the Secretary or an Assistant Secretary of the Trust,
as general partner of the Company, and delivered to the Trustee.
"Consolidated Income Available for Debt Service" as of any date means
Consolidated Net Income of the Company and its Subsidiaries plus amounts that
have been deducted for (a) interest on Debt of the Company and its Subsidiaries,
(b) provision for taxes of the Company and its Subsidiaries based on income, (c)
amortization of debt discount, (d) depreciation and amortization, (e) the effect
of any noncash charge resulting from a change in accounting principles in
determining Consolidated Net Income and (f) amortization of deferred charges,
for the four consecutive fiscal quarters most recently ended, all as determined
in accordance with GAAP, and without taking into account any provision for gains
and losses on properties.
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"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at One First
National Plaza, Suite 0126, Chicago, Illinois 60670, except that for purposes of
Sections 305 and 1002, such term shall mean the office or agency of the Trustee
in New York, New York, which office at the date hereof is located at 14 Wall
Street, 8th Floor, New York, New York 10005; attention: Corporate Trust
Administration.
"corporation" includes corporations, associations, companies, real
estate investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money 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) reimbursement obligations in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by the Company or
any Subsidiary as lessee which is reflected on the Company's consolidated
balance sheet as a capitalized lease in accordance with GAAP; but in the case of
items of indebtedness incurred under (i) through (iii) above only to the extent
that any such items (other than letters of credit) would appear as a liability
on the Company's consolidated balance sheet in accordance with GAAP; and also
includes, to the extent not otherwise included, any obligation of the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any person, any capital
stock or partnership interest of such person which by the terms of such capital
stock or partnership interest (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the occurrence
of any event or otherwise: (i) matures or is
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mandatorily redeemable, pursuant to a sinking fund obligation or 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 maturity of the relevant series of
Securities.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time and the
rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
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Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means, in connection with any optional redemption
of any Securities, the excess, if any, of: (i) the aggregate present value as of
the date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such
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dollar if such redemption had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given) from the respective dates on which such principal and
interest would have been payable if such redemption had not been made, to the
date of redemption; over (ii) the aggregate principal amount of the Securities
being redeemed.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Trustees, the President or a Vice-President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Trust,
as general partner of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Trust or the Company and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided,
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however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest 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.
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"Preferred Shares" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person that is entitled to a
preference or priority over any other capital stock or shares of beneficial
interest issued by such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means 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 the Securities.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Reinvestment Rate" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to Stated Maturity of the
principal being redeemed (the "Treasury Yield"), plus 0.25%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release under the heading "Week Ending" for "U.S.
Government Securities--Treasury Constant Maturities" with a maturity equal to
such remaining life; provided, that if no published maturity exactly corresponds
to such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities. 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. If
the format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely approximates
the above manner, as reasonably determined by the Company.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer, the controller or any other officer of the Trustee
customarily performing
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functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"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 reports 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.
"Subsidiary" means a corporation, partnership or limited liability
company, a majority of the outstanding voting stock, partnership interests or
membership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Company or by one or more Subsidiaries of the
Company. Liberty Property Development Corp. and Liberty Property Development
Corp. are each a Subsidiary for purposes of this definition. For the purposes of
this definition, "voting stock" means stock having the voting power for the
election of directors, general partners, managers or trustees, as the case may
be, whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
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"Trust" means Liberty Property Trust, a self-administered and
self-managed Maryland real estate investment trust and sole general partner of
the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" as of any date means the sum of (i)
the value of those Undepreciated Real Estate Assets not subject to an
encumbrance and (ii) the value of all other assets of the Company and its
Subsidiaries on a consolidated basis not subject to an encumbrance determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, company or other entity created or
organized in or under the laws of the United States or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by
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<PAGE> 18
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
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
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Outstanding Securities of all series or one or more series, as the case may be,
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
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(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or other 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, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered
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Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer 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 be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Non-Recourse. Notwithstanding anything contained herein to
the contrary, 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 (including, without limitation,
any obligation or indebtedness relating to the principal of, or premium or
Make-Whole Amount, if any, interest or any other amounts due, or claimed to be
due, on any Security issued hereunder), or for any claim based thereon or
otherwise in respect thereof, shall be had (i) against the Trust or any other
partner in the Company, (ii) against any Person which owns an interest, directly
or indirectly, in any partner in the Company or (iii) against any promoter, as
such, or against any past, present or future shareholder, officer, director or
partner, as such, of the Company, the Trust or of any successor, either directly
or through the Company, the Trust 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. The
Holders of the Securities hereunder acknowledge by the acceptance of the
Securities that their sole remedies under this Indenture for any Default by the
Company in the payment of the principal of, or any premium or Make-Whole Amount,
if any, interest or any amounts due, or claimed to be due, on any Security, or
otherwise, are limited to claims against the property of the Company as provided
in Section 503 hereof.
SECTION 112. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment
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Date, Redemption Date, Repayment Date or sinking fund payment date, or at the
Stated Maturity or Maturity, provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with this Indenture, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
to Section 611, the Trustee's certificate of authentication shall be
insubstantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By:
------------------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (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
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<PAGE> 24
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 and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear and/or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be
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determined from time to time by the Company with respect to unissued Securities
of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series shall be
payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment Dates on which such
interest will be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium
or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company, if
the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any provision or at the option of a Holder
thereof, and the period or periods within which or the date or dates on which,
the price or prices at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid or purchased
(including without limitation whether, and the extent to which, the premium
shall be payable in connection therewith), in whole or in part, pursuant to such
obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall
be issuable;
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(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in which
payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make- Whole Amount, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity indices or
other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the series
are to be payable, at the election of the Company, or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Securities are denominated or stated to
be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may
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occur, if other than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security, the identity
of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the exercise
of warrants, the time, manner and place for such Securities to be authenticated
and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);
(23) the terms and conditions, if any, upon which such Securities may
be subordinated to other indebtedness of the Company;
(24) the terms and conditions, if any, for securing all or any portion
of the indebtedness evidenced by the Securities of the series; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such
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Board Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company on behalf of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed by the
Chairman of the Board, and President or one of the Executive Vice Presidents,
and the Chief Financial Officer of the Trust, as general partner of the Company.
The signature of any of these officers on the Securities and coupons may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trust 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
and 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
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accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel complying with Section 102 and stating
that
(a) the form or forms of such Securities and any
coupons have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance with
this Indenture, authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the knowledge of the
signers of such certificate, no Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
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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 an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary
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Registered Security; and provided further that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless
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otherwise specified in such temporary global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security 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
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shall cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any 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
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proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is "DTC", then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to
a successor to DTC for such global Security selected or approved by the Company
or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depositary for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act if so required by applicable
law or regulation, the Company shall appoint a successor depositary with respect
to such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the
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relevant Interest Payment Date, or (ii) any Special Record Date and the opening
of business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company, or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
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therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or
Make-Whole Amount, if any), any interest on and any Additional Amounts with
respect to, Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to the
Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security held
for its account by Cede & Co. or the Common Depositary, as the case may be, for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of its participants
for the benefit 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
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deposit with the Trustee an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each place of payment, but
such publications shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security 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
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(and premium or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company, or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary, its
participants and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by the Company Order, the Company directs their return to it.
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SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 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
(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
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thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee and any predecessor Trustee under Section 606, the obligations of
the Company to any Authenticating Agent under Section 611 and, if money shall
have been deposited with and held by the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or
Make-Whole Amount, if any), and any interest and Additional Amounts for whose
payment such money has deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the making of any sinking fund payment when and
as due by the terms of any Security of that series; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness of the Company, or under any mortgage, indenture or
other instrument of the Company (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any indebtedness of the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor on a full
recourse basis) whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an aggregate principal
amount exceeding $10,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall have
resulted in such indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding Securities
of that series, a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
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(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains unstayed and in effect
for 90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
Title 11 U.S. Code or any similar Federal or State law for the relief of debtors
and the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing (other than an Event of Default
specified in clause (6) or (7) of Section 501 that occurs with respect to the
Company), then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series may
declare the principal of (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof), and premium (if any) and accrued interest on,
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, premium (if any), and accrued interest or
specified portion thereof shall become immediately due and payable. In the event
of a declaration of acceleration because an Event of Default set forth in clause
(5) of Section 501 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (5) along with any
other events of default that have been triggered by the Event of Default
(whether or not a notice or declaration of acceleration shall have been given by
the holders of the relevant indebtedness) shall be remedied or cured by the
Company and/or the relevant Subsidiary or waived by the holders of the relevant
indebtedness within 60 days after the declaration of acceleration with respect
thereto. If an Event of Default specified in clause (6) or (7) of Section 501
occurs with respect to the Company, the principal of (or specified portion
thereof), premium, if any, and accrued interest on the Securities of all series
then outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
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(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium or Make-Whole
Amount, if any, on) any Outstanding Securities of that series which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided for in
such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series at its
Maturity, then the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amount, with interest upon any overdue principal (and premium or Make-Whole
Amount, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest or Additional
Amounts, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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
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final decree, and may enforce the same against the Company, or any other obligor
upon such Securities of such series and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or coupon in
any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or
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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;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the
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Outstanding Securities of that series; it being understood and intended that no
one or more of such Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if any, Interest and Additional
Amounts. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
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Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or Additional Amounts payable in
respect of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of any undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims
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or defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on or any Additional Amounts with
respect to any Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution of the
Board of Trustees may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
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(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the
Securities has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to the Securities such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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, coupons, or any prospectus pursuant to which the Securities are
offered except that the Trustee represents
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that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as mutually agreed upon
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee, its directors, officers
and employees, and any predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
own part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any coupons.
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The provisions of this Section shall survive the termination
of this Indenture
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
the provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 607 and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(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
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others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance or such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, the resigning or removed Trustee or any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such successor Trustee
shall execute, acknowledge and deliver to the Company and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto, pursuant to Article Nine hereof, wherein each
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successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co- trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company, or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities 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.
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SECTION 611. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No
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successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
------------------------
as Authenticating Agent
By:
------------------------
as Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with TIA Section
312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
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(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or if
the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 704. The Company to Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be furnished to
the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, however, that, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (1) either the Company shall be the continuing entity, or the
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successor entity shall be an entity organized and existing under the laws of the
United States or a State thereof and such successor entity shall expressly
assume the due and punctual payment of the principal of (and premium or
Make-Whole Amount, if any) and any interest (including all Additional Amounts,
if any, payable pursuant to Section 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 entity and (2)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result thereof as having been incurred by the Company or such Subsidiary at the
time 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 Entity. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor entity, except in the
event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities of the same series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
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
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided such provisions shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1011 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared
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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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium (if any),
Make-Whole Amount (if any), Interest and Additional Amounts. The Company
covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium or Make-Whole
Amount, if any) and interest on and any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 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 registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1011) or conversion; provided, however, that if
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the Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, 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) or conversion at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoint the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 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 or Make-Whole
Amount, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying
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Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units
or composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest; and
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(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms 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. Intentionally Omitted.
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 its existence, rights (by partnership agreement and statute)
and franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if it determines that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties. The Company will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Company and its Subsidiaries shall not be prevented from selling or otherwise
disposing of for value their respective properties in the ordinary course of its
business.
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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 insurers
of recognized responsibility and having an A.M.
Best policy holder's rating of not less than A-V.
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 or for which the Company has
set apart and maintains an adequate reserve.
SECTION 1009. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Exchange Act, the
Company will, to the extent permitted under the Exchange Act, file with the
Commission the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to such
Sections 13 or 15(d) if the Company were so subject (the "Financial
Information"), 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 also will in any event (x) within 15 days of each Required Filing Date:
(i) transmit by mail to all Holders of Securities, as their names and addresses
appear in the Security Register, without cost to such Holders, copies of the
Financial Information; and (ii) file with the Trustee copies of the Financial
Information, and (y) if filing such documents by the Company with the Commission
is not permitted under the Exchange Act, promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder.
SECTION 1010. Statement as to Compliance. The Company will, in
accordance with Section 314 of the TIA, 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 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
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series established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal 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 or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 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 1005 to 1009, inclusive, if before or after the time for
such compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article; Redemption to Maintain
REIT Status.
(a) 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.
(b) The Company shall redeem all or a portion of the
Securities of any series as necessary to comply with any requirement for the
Trust's continued qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended.
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 all or 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
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pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without a charge, a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date unless the Company shall default in the payment of
the Redemption Price and any accrued interest thereon,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company and
the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section
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305 or otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one
Business Day prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities convertible into
Common Shares or Preferred Shares, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
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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 by the Company shall not
be so paid upon surrender thereof for redemption by reason of a failure to
comply with Section 1105, the principal (and premium or Make-Whole Amount, if
any) shall, until paid, bear interest from the Redemption Date at the rate borne
by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with
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respect to the Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption) together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such series which
have been redeemed whether at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities, or which have otherwise been acquired by the Company;
provided that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for the
series pursuant to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of such in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the securities of such series) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of an at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that at least one Business Day
prior to the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is
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acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however, that such
telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series that provide for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portion thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any
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Bearer Securities so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in accordance with such
provisions, together with coupons, if any, appertaining thereto maturing after
the Repayment Date, the principal amount of such Security so to be repaid shall
be paid by the Company, together with accrued interest, if any, on the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or prior to
the Repayment Date shall be payable at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but with interest thereon, unless
the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof by reason of a failure by the
Company to comply with this Section 1304, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or
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both of (a) defeasance of the Securities of or within a series under Section
1402 or (b) covenant defeasance of the Securities of or within a series under
Section 1403, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining thereto, elect to
have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to
such Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Company's
obligations with respect to such Securities under 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.
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 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
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covenant or by reason of reference in any Section or such other covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 501(4) or
501(8) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another 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 any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
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(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be), registration is
not required under the Investment Company Act of 1940, as amended, by the
Company with respect to the trust funds representing such deposit or by the
Trustee for such trust funds or (ii) all necessary registrations under said Act
have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in
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respect of which such deposit was made is entitled to, and does, elect pursuant
to Section 301 or the terms of such Security to receive payment in a currency or
currency unit other than that in which the deposit pursuant to Section 1404(a)
has been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the currency or currency unit in which the deposit pursuant to
Section 1404(a) has been made, the indebtedness represented by such Security and
any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by 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
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meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series, shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place 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
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the
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Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specific percentage, which is less than a majority, in
principal amount 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 act that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum
requirement for such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall be taken
into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken
under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
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(b) The Trustee shall, by an instrument in writing
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities provided in Section 1502(b),
in which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any
series duly called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting,
and the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Holders of any or 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 and execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this
-75-
<PAGE> 82
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, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST, as its sole
general partner
By: /s/ Willard G. Rouse III
-------------------------------
Title: Chairman, Chief
Executive Officer
ATTEST
By: /s/ James J. Bowes
-----------------------------
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Richard D. Manella
-------------------------------
Title: Vice President
ATTEST
By: /s/ Mark J. Frye
----------------------------------------
Title: Assistant Vice President
<PAGE> 83
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
companies, domestic corporations or any estate or trust the income of which is
subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Liberty Property Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "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.
<PAGE> 84
This certificate excepts and does not relate to [U.S.$] ________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _________________, 19__
[To be dated no earlier than the 15th day prior to
(i) the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange Date,
as applicable]
[Name of Person Making Certification]
- -----------------------------------
(Authorized Signatory)
Name:
Title:
-2-
<PAGE> 85
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S. $]
________________________________________________________ principal amount of the
above-captioned Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic companies, domestic corporations or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Liberty Property Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations 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.
<PAGE> 86
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System [Cedel S.A.]
By:
------------------------------------------
-2-
<PAGE> 87
Exhibit B
--------
OFFICERS' CERTIFICATE
We, ________________________________, Chief Operating Officer,
and ____________________________________________________, Chief Financial
Officer, respectively, of Liberty Property Trust, the General Partner (the
"General Partner") of Liberty Property Limited Partnership (the "Company"),
pursuant to Section 301 of the Indenture dated as of _______, 19__ between the
Company and The First National Bank of Chicago, as Trustee (the "Indenture"),
hereby certify that a series of Securities with the following terms has been
established by a Board Resolution and has been denominated _____________Notes
due (the "Notes"), and we further certify as follows with respect to the Notes
(unless otherwise defined herein, capitalized terms shall have the meanings set
forth in the Indenture):
1. the title of the Notes shall be "__________ Notes
due _____." The Notes constitute a series of Securities
as defined in the Indenture. [The Notes shall be
issuable as Registered Securities in permanent global
form only in denominations of $1,000 or any integral
multiple thereof;]
2. the maximum aggregate principal amount of Notes that
may be authenticated and delivered under the
Indenture shall be $_____________ (except for Notes
authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of other
Notes pursuant to Section 304, 305, 306, 906, 1107 or
1305 of the Indenture);
3. the principal amount of the Notes shall be payable
on ___________, ____, subject to the provisions of the
Indenture and the Notes;
4. interest will accrue from ________, 1997. The Notes will
bear interest at _____% per annum, payable in the manner
and on the dates set forth in the attached form of
Notes;
5. the Corporate Trust Office of The First National Bank
of Chicago is appointed the principal paying agent,
transfer agent, and registrar for the Notes and for
the purpose mentioned in Section 1002 of the
Indenture. The Notes may be presented for payment at
maturity or redemption at such Corporate Trust
Office, or at any other agency as may be appointed by
the Company from time to time in The City of New
York;
6. [the provisions of Sections 1402 and 1403 of the
Indenture with regard to defeasance and discharge and
covenant defeasance, respectively, shall be applicable
to the Notes without modification];
<PAGE> 88
7. [the Notes may be redeemed at any time at the option of
the Company, in such manner and upon the terms set forth
in the attached form of Notes and the Indenture;]
8. [the Notes will be represented by one or more Global
Notes as described under the caption "Description of
the Notes--Book Entry System" in the Company's
Prospectus Supplement dated _________, 1997 with
respect to the offering of the Notes (the "Prospectus
Supplement") (except that, in certain limited
circumstances, the Company may issue Notes in
definitive form to owners of beneficial interests in
a Global Note, as described in the above-referenced
section of the Prospectus Supplement);]
9. the Notes shall have such other terms and conditions as
are set forth in the form of the Notes. The Notes shall
be subject to the provisions of the Indenture; and
10. the attached form of the Notes is in the form approved
pursuant to authority granted by the Board of Directors.
This Certificate is delivered pursuant to the provisions of
Sections 201, 301, and 303 of the Indenture. The undersigned hereby certify as
follows:
(a) we have read each of the Sections of the
Indenture referred to above;
(b) we have examined the Indenture, the form of
Notes and such other documents, records, and
instruments as we have deemed necessary for
purposes of giving this certificate;
(c) to the best of our knowledge, no Event of
Default with respect to the Notes has
occurred and is continuing;
(d) in our opinion, we have made such
examination and investigation as is
necessary to enable us to express an
informed opinion as to whether the
conditions precedent to the issuance of the
Notes have been complied with; and
-2-
<PAGE> 89
(e) in our opinion, the conditions precedent to
the issuance of the Notes have been complied
with.
Dated: __________, 1997 Liberty Property Limited Partnership
by: Liberty Property Trust
By:
-----------------------------------------
Chief Operating Officer
By:
-----------------------------------------
Chief Financial Officer
-3-
<PAGE> 90
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR
ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A
NOMINEE OF SUCH SUCCESSOR.
REGISTERED
REGISTERED
No. Principal
Amount
CUSIP No.
$
LIBERTY PROPERTY LIMITED PARTNERSHIP
_______Notes due____
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, upon presentation, the principal sum of_____________
Dollars ($_________)on_______,_______, and to pay interest thereon from_______,
(or from the most recent Interest Payment Date to which interest has been paid
or duly provided for), semi-annually in arrears on__________ and __________ of
each year, commencing on ______, 199_, and at Maturity, at a rate of interest of
_____% per annum, until payment of said principal sum has been made or duly
provided for. Any capitalized term not defined herein shall have the meaning
assigned to it in that certain Indenture by and among the Issuer and The First
National Bank of Chicago, a _______________, dated as of _________, 199_.
<PAGE> 91
The interest so payable and punctually paid or duly provided
for on an Interest Payment Date and at Maturity will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the Regular Record Date for such payment, which will be 15
calendar days (regardless of whether such day is a Business Day) next preceding
such Interest Payment Date or Maturity, as the case may be. Any 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 Holder in
whose name this Note (or one or more predecessor Notes) 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
Notes of this series not less than ten (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 or which the Notes of this
series may be listed, and upon such notice as may be required by such exchange,
as more fully provided in the Indenture.
The principal and Make-Whole Amount, if any, of this Note
payable at Maturity will be paid against presentation and surrender of this Note
at the office or agency of the Issuer maintained for that purpose in The Borough
of Manhattan, The City of New York. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee in The City of New York as the office to
be maintained by it where Notes may be presented for payment, registration of
transfer or exchange and where notices or demands to or upon the Issuer in
respect of the Notes or the Indenture may be served.
Interest payable on this Note will be computed on the basis of
a 360-day year consisting of twelve 30-day months. If any Interest Payment Date
or Maturity would otherwise be a day that is not a Business Day, the required
payment will be made on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
[Notes of this series may be redeemed at any time at the
option of the Issuer, in whole or in part, upon notice to the Holders 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 Notes being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount, if any, with respect to such Notes.]
Payments of principal, Make-Whole Amounts, if any, and
interest in respect of this Note will be made by wire transfer of immediately
available funds, in such coin or currency as at the time of payment is legal
tender for the payment of public and private debts, so long as this Note is in
global form as described in Section 203 of the Indenture. If this Note is not in
global form, all such payments will be made by wire transfer of immediately
available funds if the Holder hereof at the applicable record date shall have
provided wire transfer instructions to the Trustee, received by the Trustee no
later than fifteen (15) days prior to the applicable payment date, and otherwise
payment shall be made in accordance with Section 307 of the Indenture. Such wire
transfer instructions shall remain in effect until revoked in a writing received
by the Trustee from the Holder hereof.
-2-
<PAGE> 92
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to the benefits of the
Indenture referred to on the reverse hereof or be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed manually or by facsimile by its duly authorized officers.
Dated:____________, 1997 LIBERTY PROPERTY LIMITED PARTNERSHIP, as
Issuer
By: LIBERTY PROPERTY TRUST, not individually but
as General Partner
By:
--------------------------------
By:
--------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated:___________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:________________________________
Authorized Signatory
-3-
<PAGE> 93
[FORM OF REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
______%___________Notes due____
This security is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under an Indenture dated as of , 1997 (the "Indenture"), between the
Issuer and The First National Bank of Chicago, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the series of Securities of which this Note is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary
provided in the Indenture. This Security is one of a series designated on the
first page hereof, limited in aggregate principal amount to $ ____________.
In case an Event of Default with respect to Securities of this
series shall have occurred and be continuing, the principal of, and premium or
Make-Whole Amount, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect, and subject to the
conditions provided in the Indenture.
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 (i) such Holder shall have previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Outstanding Securities of this series, (ii) the Holders of not
less than 25% in principal amount of the Outstanding Securities of this 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, (iii) such Holder
or Holders have offered reasonable indemnity to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity and (v) the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such
request.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer 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 at
least a majority in principal amount of the Securities of such series
Outstanding, on behalf of the Holders of all Securities of such series, to
<PAGE> 94
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holders 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 Issuer,
which is absolute and unconditional, to pay the principal of, premium or
Make-Whole Amount, if any, 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 Issuer in any Place of Payment where the
principal of, premium or 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 Issuer 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 registration of
transfer or exchange of Securities of this series, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. [In no event shall the Issuer be required to
pay any Additional Amounts as contemplated by the Indenture.]
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee may treat the Person in whose name this Security is registered as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, the Trustee or any
authorized agent of the Issuer or the Trustee shall be affected by any notice to
the contrary.
Notwithstanding anything contained herein or in the Indenture
to the contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby (including without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Security), or for any
claim based thereon or otherwise in respect thereof, shall be had (i) against
the Trust or any other
-2-
<PAGE> 95
partner in the Issuer, (ii) against any person which owns an interest, directly
or indirectly, in any partner in the Issuer or (iii) against any promoter, as
such, or against any past, present or future stockholder, partner, officer or
director, as such, of the Issuer or of any successor, either directly or through
the Issuer or any successor, under any rule of law, statute or constitutional
provisions 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 this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series. The Holder of this
Security acknowledges by acceptance of this Security that its sole remedies
under the Indenture for any Default by the Issuer in the payment of the
principal of, or any premium or Make-Whole Amount, if any, interest or any
amounts due, or claimed to be due, on this Security, or otherwise, are limited
to claims against the property of the Issuer as provided in Sections 111 and 503
of the Indenture.
THE INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A
CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE
REQUIRED BY MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer 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.
Terms used herein that are defined in the Indenture shall have
the respective meanings assigned them in the Indenture.
-3-
<PAGE> 96
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 MIN ACT -
TEN ENT - as tenants by the entireties ______Custodian ________
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to
tenants in common Act _____________ 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:________________
-------------------------------
Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securties Exchange Act of 1934, as amended.
-4-
<PAGE> 1
EXHIBIT 10.4
================================================================================
LIBERTY PROPERTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
-----------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 24, 1997
-----------
FIXED RATE AND FLOATING RATE
MEDIUM-TERM NOTES DUE NINE MONTHS
OR MORE FROM DATE OF ISSUE
-----------
SUPPLEMENT TO INDENTURE,
DATED AS OF OCTOBER 24, 1997, BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
================================================================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of October 24, 1997,
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(the "Company"), having its principal offices at 65 Valley Stream Parkway,
Malvern, Pennsylvania 19355, and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association organized under the laws of the United States of America, as
trustee (the "Trustee"), having its Corporate Trust Office at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126.
RECITALS
WHEREAS, the Company executed and delivered its Indenture (the
"Original Indenture"), dated as of October 24, 1997, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Company may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Company intends by this Supplemental Indenture to
(i) create a series of debt securities, to be issued from time to time in an
aggregate principal amount not to exceed $200,000,000, entitled "Medium-Term
Notes Due Nine Months or More From Date of Issue" (the "Notes"); and (ii) (iii)
establish the forms and the terms and conditions of such Notes.
WHEREAS, the Board of Trustees of Liberty Property Trust (the
"Trust"), the general partner of the Company, has approved the creation of the
Notes and the form, terms and conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery
of this Supplemental Indenture is not required, and all other actions required
to be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT
SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"FIXED RATE NOTES" means the Company's Fixed Rate Notes due
nine months or more from date of issue, a form of which is attached hereto as
Exhibit A.
"FLOATING RATE NOTES" means the Company's Floating Rate Notes
due nine months or more from date of issue, a form of which is attached hereto
as Exhibit B.
<PAGE> 3
"INDENTURE" means the Original Indenture as supplemented by
this First Supplemental Indenture.
"INTERCOMPANY DEBT" means Debt to which the only parties are
the Trust, any of its subsidiaries, the Company and any Subsidiary, or Debt owed
to the Trust arising from routine cash management practices, but only so long as
such Debt is held solely by any of the Trust, any of its subsidiaries, the
Company and any Subsidiary.
"PRICING SUPPLEMENT" means a pricing supplement to the
Prospectus, dated October 24, 1997, as supplemented by the Prospectus
Supplement, dated October 24, 1997, establishing the terms of the applicable
Notes.
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Company hereby creates the Notes as a
separate series of its debt securities issued pursuant to the Indenture. The
Notes shall be issued from time to time in an aggregate principal amount not to
exceed $200,000,000.
SECTION 1.03 FORM OF THE DEBT SECURITIES. Each Note will be issued in
fully registered book-entry form or in certificated form, as specified in the
applicable Pricing Supplement. The Fixed Rate Notes shall be in the form of
Exhibit A attached hereto and the Floating Rate Notes shall be in the form of
Exhibit B attached hereto.
SECTION 1.04 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the terms
of the Notes shall be as set forth from time to time in the applicable Notes and
the related Pricing Supplement. All such terms and conditions set forth in such
Notes and in such Pricing Supplement are incorporated by reference into this
Supplemental Indenture. In addition, the provisions of Article 14 of the
Original Indenture shall apply to the Notes.
ARTICLE TWO
ADDITIONAL COVENANTS
The Notes shall be governed by all the covenants contained in the
Original Indenture, as supplemented by this First Supplemental Indenture, and in
particular, this First Supplemental Indenture amends Section 1004 of the
Original Indenture to read as follows:
"SECTION 1004. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any Subsidiary to,
incur any Debt, other than Intercompany Debt, that is subordinate in right of
payment to the Notes, if, immediately after giving effect to the incurrence of
such Debt and the application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries on a
consolidated basis determined in accordance with GAAP is greater than 60% of the
sum of (i) the Company's Adjusted Total Assets as of the end of the most recent
fiscal quarter prior to the incurrence of such additional Debt and (ii) the
increase in Adjusted Total Assets since the end of such quarter (including any
increase resulting from the incurrence of additional Debt).
2
<PAGE> 4
(b) The Company will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge on the date on which such additional Debt is to be
incurred would 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.
(c) The Company will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the Company or any
Subsidiary ("Secured Debt"), whether owned at the date hereof or hereafter
acquired, if, immediately after giving effect to the incurrence of such Secured
Debt and the application of the proceeds thereof, the aggregate principal amount
of all outstanding Secured Debt of the Company and its Subsidiaries on a
consolidated basis is greater than 40% of the sum of (i) the Company's Adjusted
Total Assets as of the end of the most recent fiscal quarter prior to the
incurrence of such additional Debt and (ii) the increase in Adjusted Total
Assets since the end of such quarter (including any increase resulting from the
incurrence of additional Debt).
(d) The Company will at all time maintain an Unencumbered Total
Asset Value in an amount not less than 150% of the aggregate principal amount of
all outstanding unsecured Debt of the Company and its Subsidiaries on a
consolidated basis.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Company or a Subsidiary whenever the Company or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof."
ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Company. The recitals
of fact contained herein shall be taken as the statements solely of the Company,
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
3
<PAGE> 5
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act, that are required to be part of this Supplemental Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
4
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
as its sole General Partner
By: /s/ Willard G. Rouse III
--------------------------------------
Name: Willard G. Rouser III
Title: Chairman and Chief
Executive Officer
Attest:
/s/ James J. Bowes
- --------------------------------
Name: James J. Bowes
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Richard D. Manella
--------------------------------------
Name: Richard D. Manella
Title: Vice President
Attest:
/s/ Mark J. Frye
- --------------------------------
Name: Mark J. Frye
Title: Assistant Vice President
5
<PAGE> 7
STATE OF PA )
) ss:
COUNTY OF CHESTER )
On the 22nd day of October 1997, before me personally came
Willard G. Rouse III, to me known, who, being by me duly sworn, did depose and
say that he/she resides at 65 Valley Stream Parkway, that he/she is
Chairman and CEO of LIBERTY PROPERTY TRUST, the sole general partner of LIBERTY
PROPERTY LIMITED PARTNERSHIP, 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 Trustees.
/s/ Cheryl S. Hilkert
------------------------------------
Notary Public
COMMISSION EXPIRES
[NOTARIAL SEAL APPEARS]
6
<PAGE> 8
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 22nd day of October 1997, before me personally came
Richard D. Manella, to me known, who, being by me duly sworn, did depose and
say that he/she resides at 211 Willow Pky, Buffalo Grove,IL, 60089 that he/she
is a Vice President of THE FIRST NATIONAL BANK OF CHICAGO, 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.
/s/ Dana McCray
------------------------------------
Notary Public
COMMISSION EXPIRES
[NOTARIAL SEAL APPEARS]
7
<PAGE> 9
Exhibit A
[FACE OF NOTE]
THIS NOTE 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 NOTE 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.*
LIBERTY PROPERTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
<TABLE>
<S> <C> <C>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT: $
No. FXR-_____
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S): DEFAULT RATE: %
[ ] _______ and ________
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT REPAYMENT PRICE: % [ ] CHECK IF A DISCOUNT NOTE
DATE(S): Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE EXCHANGE RATE:
AGENT: U.S. $1.00 =
ADDENDUM ATTACHED: OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
</TABLE>
- ----------------
* This paragraph applies to global Notes only.
A-1
<PAGE> 10
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Company," which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ____________________________, or registered assigns, upon presentation, the
principal sum of $__________________________________________, on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date,
each as defined on the reverse hereof) (each such Stated Maturity Date,
Redemption Date or Repayment Date being hereinafter referred to as the "Maturity
Date" with respect to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specified above, until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal, premium and/or interest. The
Company will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the holder of this Note on the
Record Date with respect to such second Interest Payment Date. Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee 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 this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon presentation and surrender of this Note and a duly
completed election form as contemplated on the reverse hereof) at the office or
agency maintained by the Company for that purpose in the Borough of Manhattan,
The City of New York, currently the office of the Trustee located at First
National Bank of Chicago, c/o First Chicago Trust Company of New York, 14 Wall
Street, 8th Floor, New York, New York 10005, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
provided, however, that if the Specified Currency specified above is other than
United States dollars and such payment is to be made in the Specified Currency
in accordance with the provisions set forth below, such payment will be made by
wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities
A-2
<PAGE> 11
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office or
agency maintained by the Company in time for the Trustee to make such payment in
such funds in accordance with its normal procedures. Payment of interest due on
any Interest Payment Date other than the Maturity Date will be made at the
aforementioned office or agency maintained by the Company or, at the option of
the Company, by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained by the Trustee;
provided, however, that a holder of U.S. $10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York or Chicago, Illinois; provided, however, that if the Specified
Currency is other than United States dollars, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (unless the Specified Currency is
European Currency Units ("ECU"), in which case such day is also not a day that
appears as an ECU non-settlement day on the display designated as "ISDE" on the
Reuter Monitor Money Rates Service (or a day so designated by the ECU Banking
Association) or, if ECU non-settlement days do not appear on that page (and are
not so designated), a day that is not a day on which payments in ECU cannot be
settled in the international interbank market); provided that, with respect to
Notes as to which LIBOR is an applicable Interest Rate Basis, such day is also a
London Business Day (as defined below). "London Business Day" means any day on
which dealings in the Designated LIBOR Currency (as defined below) are
transacted in the London interbank market. "Principal Financial Center" means
(i) the capital city of the country issuing the Specified Currency (except as
described in the immediately preceding sentence with respect to ECU) or (ii) the
capital city of the country which the Designated LIBOR Currency, if applicable,
relates (or, in the case of ECU, Luxembourg), except, in each case, that with
respect to United States dollars, Australian dollars, Canadian dollars, Deutsche
marks, Dutch guilders, Italian lire, Swiss francs and ECUs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan (solely in the case of clause (i) above), Zurich and
Luxembourg, respectively.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Company will be converted by the Exchange Rate Agent specified
above into United States dollars for payment to the holder of this Note.
A-3
<PAGE> 12
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes payable in the Specified Currency who are scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency unless
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below), computed by the Exchange Rate Agent, on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate, or
as otherwise specified on the face hereof. The "Market Exchange Rate" for the
Specified Currency means the noon dollar buying rate in The City of New York for
cable transfers for the Specified Currency as certified for customs purposes by
(or, if not so certified, as otherwise determined by) the Federal Reserve Bank
of New York. Any payment made under such circumstances in United States dollars
will not constitute an Event of Default (as defined in the Indenture) with
respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars on the
basis of the equivalent of the composite currency
A-4
<PAGE> 13
in United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
Market Exchange Rate on the second Business Day prior to the required payment,
or, if such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate for each such Component Currency, or as
otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
A-5
<PAGE> 14
IN WITNESS WHEREOF, Liberty Property Limited Partnership has caused
this Note to be duly executed by one of its duly authorized officers.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, its sole general partner
By:
-------------------------------------------------
Name:
Title:
Dated:____________, 199__
ATTEST:
By:
----------------------
Name:
Title:
[Seal]
A-6
<PAGE> 15
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By Date:_______________, 199__
----------------------------------------------
Authorized Signatory
A-7
<PAGE> 16
[REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Company issued and to be issued under an Indenture, dated
as of October 24, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and The First National Bank of Chicago,
as Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the 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 Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More from Date of Issue"
(the "Notes"). All terms used but not defined in this Note or in an Addendum
hereto shall have the meanings assigned to such terms in the Indenture or on the
face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on written notice given to the holder hereof not more than 60 nor less
than 30 calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price," if any, shall initially be
the Initial Redemption Percentage specified on the face hereof multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage, if any, shall decline at each anniversary of the Initial Redemption
Date by the Annual Redemption Percentage Reduction, if any, specified on the
face hereof until the Redemption Price is 100% of the unpaid principal amount to
be redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). If an Optional Repayment Date is not set
A-8
<PAGE> 17
forth on the face hereof, this Note will not be repayable at the option of the
holder hereof prior to Maturity. For this Note to be repaid, the Trustee must
receive at its office in the Borough of Manhattan, The City of New York,
referred to on the face hereof, at least 30 days but not more than 60 days prior
to the Repayment Date this Note and the form hereon entitled "Option to Elect
Repayment" duly completed. Exercise of such repayment option by the holder
hereof will be irrevocable. In the event of repayment of this Note in part only,
a new Note of like tenor for the unrepaid portion hereof and otherwise having
the same terms as this Note shall be issued in the name of the holder hereof
upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (i) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-
day year convention, a compounding period that, except for the Initial Period
(as defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), and an assumption
that the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of and premium (if any) and interest on the Notes
either shall automatically become or may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) 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 Note.
As provided in and subject to the provisions of the Indenture, the
holder of this Note 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 hereunder, unless (i) such holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities of this series, (ii) the holders of not less than 25% 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 in its own name as Trustee, (iii) such holder or holders
have offered reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity, and (v) the Trustee
shall not have received, during the 60-day period referenced in clause (iv)
above, from the holders of a majority in
A-9
<PAGE> 18
principal amount of Securities of this series at the time Outstanding in a
direction inconsistent with such request; provided that, no one or more holder
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of the Indenture to affect, disturb or prejudice the rights of any
other holder, or to obtain or to seek to obtain priority or preference over any
other holder or to enforce any right under the Indenture, except in the manner
therein provided and for the equal and ratable benefit of all holders. The
foregoing shall not apply to any suit instituted by the holder of this Note 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 at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Company with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the 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 Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as
A-10
<PAGE> 19
the owner thereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Note, or because of any indebtedness
evidenced thereby or hereby, (including without limitation, any obligation or
indebtedness relating to the principal of, or premium or Make-Whole Amount, if
any, interest or any other amounts due, or claimed to be due, on this Security),
or for any claim based thereon or otherwise in respect thereof, shall be had (i)
against Liberty Property Trust or any other partner of the Company, (ii) against
any person which owns an interest, directly or indirectly, in any partner in the
Company, or (iii) against any promoter, as such or, against any past, present or
future stockholder, partner, 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, statue 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 this Note by
the holder thereof and as part of the consideration for the issue of the
Securities of this series. The holder of this Security acknowledges by
acceptance of this Security that its sole remedies under the Indenture for any
Default by the Company in the payment of principal of, or any premium or
Make-Whole Amount, if any, interest or any amounts due, or claimed to be due, on
this Security, or otherwise, are limited to claims against the property of the
Company as provided in Sections 111 and 503 of the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS NOTE, 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.
A-11
<PAGE> 20
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, 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 MIN ACT -
TEN ENT - as tenants by the entities ______ Custodian ______
JT TEN - as joint tenants with right of survivorship (Cust) (Minor)
and not as tenants in common Under Uniform Gifts to Minors
Act_____________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
--------------------
ASSIGNMENT
- --------------------------------------------------------------------------------
Please insert social security or other identifying number of assignee.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee) the within Note and all rights thereunder hereby irrevocably
constituting and appointing ______, attorney to transfer said Note on the books
of the Trustee, with full power of substitution in the premises.
Dated:_____________, 199__
------------------------------------
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon the face of
this Note in every particular, without alteration or
enlargement or any change whatsoever.
Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, savings and
loan association or credit union meeting the
requirements of the Registrar, which requirements
include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined
by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
A-12
<PAGE> 21
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more than 60
nor less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount to be Repaid: $
Date:
------------------------------------
Notice: The signature(s) on thisOption to Elect
Repayment must correspond with the name(s) as
written upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
A-13
<PAGE> 22
Exhibit B
[FACE OF NOTE]
THIS NOTE 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 NOTE 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.*
LIBERTY PROPERTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
<TABLE>
<S> <C> <C>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT: $
No. FLR-____
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate If Telerate Page 7052:
[ ] Designated LIBOR Currency [ ] Weekly Average
[ ] Designated LIBOR Page: [ ] Monthly Average
[ ] Reuters Page: Designated CMT Maturity Index:
[ ] Telerate Page:
INITIAL INTEREST RATE: %
INITIAL INTEREST RESET DATE:
INTEREST RESET PERIOD:
INTEREST RESET DATE(S):
INTEREST PAYMENT DATE(S):
INDEX MATURITY:
</TABLE>
B-1
<PAGE> 23
SPREAD (PLUS OR MINUS):
SPREAD MULTIPLIER:
MINIMUM INTEREST RATE: %
MAXIMUM INTEREST RATE: %
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE: %
ANNUAL REDEMPTION PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT DATE(S):
REPAYMENT PRICE: %
[ ] CHECK IF A DISCOUNT NOTE ISSUE PRICE: %
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period from
[ ] Floating Rate/Fixed Rate Note ___________ to _________
Fixed Rate Commencement Date: [ ] Actual/360 for the period from
Fixed Interest Rate: % ___________ to _________
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period from
Fixed Interest Rate: % ___________ to _________
Applicable Interest Rate Basis:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples thereof
[ ] Other: [ ] Other:
CALCULATION AGENT:
EXCHANGE RATE AGENT: EXCHANGE RATE: DEFAULT RATE: %
U.S. $1.00 =
ADDENDUM ATTACHED: ISSUE PRICE:
[ ] Yes
[ ] No
AGENT'S DISCOUNT OR COMMISSION:
OTHER/ADDITIONAL PROVISIONS:
- -----------------------
* This paragraph applies to global Notes only.
B-2
<PAGE> 24
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Company," which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to _____________________________________________________________________ , or
registered assigns, upon presentation, the principal sum of
$___________________________________________, on the Stated Maturity Date
specified above (or any Redemption Date or Repayment Date, each as defined on
the reverse hereof) (each such Stated Maturity Date, Redemption Date or
Repayment Date being hereinafter referred to as the "Maturity Date" with respect
to the principal repayable on such date) and to pay interest thereon, at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate determined in
accordance with the provisions specified above and on the reverse hereof or in
an Addendum hereto with respect to one or more Interest Rate Bases specified
above until the principal hereof is paid or duly made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable)
at the Default Rate per annum specified above on any overdue principal, premium
and/or interest. The Company will pay interest in arrears on each Interest
Payment Date, if any, specified above (each, an "Interest Payment Date"),
commencing with the first Interest Payment Date next succeeding the Original
Issue Date specified above, and on the Maturity Date; provided, however, that if
the Original Issue Date occurs between a Record Date (as defined below) and the
next succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date next succeeding the Original Issue Date to the
holder of this Note on the Record Date with respect to such second Interest
Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee 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 this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon presentation and surrender of this Note and a duly
completed election form as contemplated on the reverse hereof) at the office or
agency maintained by the Company for that purpose in the Borough of Manhattan,
The City of New York, currently the office of the Trustee located at First
National Bank of Chicago, c/o First Chicago Trust Company of New York, 14 Wall
Street, 8th Floor, New York, New York 10005, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
provided, however, that if the Specified Currency specified above is other than
United States dollars and such payment is to be made in the Specified Currency
in accordance with the provisions set forth below, such payment will be made by
wire transfer of immediately available funds to an account with a bank
designated by the holder hereof
B-3
<PAGE> 25
at least 15 calendar days prior to the Maturity Date, provided that such bank
has appropriate facilities therefor and that this Note (and, if applicable, a
duly completed repayment election form) is presented and surrendered at the
aforementioned office or agency maintained by the Company in time for the
Trustee to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made at the aforementioned office of agency maintained by
the Company or, at the option of the Company, by check mailed to the address of
the person entitled thereto as such address shall appear in the Security
Register maintained by the Trustee; provided, however, that a holder of U.S.
$10,000,000 (or, if the Specified Currency is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on any Interest Payment Date other
than the Maturity Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day, and if the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day, each with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York or Chicago, Illinois; provided, however, that if the Specified
Currency is other than United States dollars, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (unless the Specified Currency is
European Currency Units ("ECU"), in which case such day is also not a day that
appears as an ECU non-settlement day on the display designated as "ISDE" on the
Reuter Monitor Money Rates Service (or a day so designated by the ECU Banking
Association) or, if ECU non-settlement days do not appear on that page (and are
not so designated), a day that is not a day on which payments in ECU cannot be
settled in the international interbank market); provided that, with respect to
Notes as to which LIBOR is an applicable Interest Rate Basis, such day is also a
London Business Day (as defined below). "London Business Day" means any day on
which dealings in the Designated LIBOR Currency (as defined below) are
transacted in the London interbank market. "Principal Financial Center" means
(i) the capital city of the country issuing the Specified Currency (except as
described in the immediately preceding sentence with respect to ECU) or (ii) the
capital city of the country which the Designated LIBOR Currency, if applicable,
relates (or, in the case of ECU, Luxembourg), except, in each case, that with
respect to United States dollars, Australian dollars, Canadian dollars, Deutsche
marks, Dutch guilders, Italian lire, Swiss francs and ECUs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan (solely in the case of clause (i) above), Zurich and
Luxembourg, respectively.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country
B-4
<PAGE> 26
which issued the Specified Currency as at the time of such payment is legal
tender for the payment of such debts). If the Specified Currency is other than
United States dollars, except as provided below, any such amounts so payable by
the Company will be converted by the Exchange Rate Agent specified above into
United States dollars for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes payable in the Specified Currency who are scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency unless
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below), computed by the Exchange Rate Agent, on the second Business
Day prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate or
as otherwise specified on the face hereof. The "Market Exchange Rate" for the
Specified Currency means the noon dollar buying rate in The City of New York for
cable transfers for the Specified Currency as certified for customs purposes by
(or, if not so certified, as otherwise determined by) the Federal Reserve Bank
of New York. Any payment made under such circumstances in United States dollars
will not constitute an Event of Default (as defined in the Indenture) with
respect to this Note.
B-5
<PAGE> 27
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars on the
basis of the equivalent of the composite currency in United States dollars. The
component currencies of the composite currency for this purpose (collectively,
the "Component Currencies" and each, a "Composite Currency") shall be the
currency amounts that were components of the composite currency as of the last
day on which the composite currency was used. The equivalent of the composite
currency in United States dollars shall be calculated by aggregating the United
States dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the Market Exchange Rate on the second
Business Day prior to the required payment, or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market Exchange
Rate for each such Component Currency, or as otherwise specified on the face
hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
B-6
<PAGE> 28
IN WITNESS WHEREOF, Liberty Property Limited Partnership has caused
this Note to be duly executed by one of its duly authorized officers.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, its sole general partner
By:
-------------------------------------------------
Name:
Title:
Dated:
ATTEST:
By: -----------------------
Name:
Title:
[Seal]
B-7
<PAGE> 29
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By Date:_______________, 199__
---------------------------------------
Authorized Signatory
B-8
<PAGE> 30
[REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Company issued and to be issued under an Indenture, dated
as of October 24, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Company and The First National Bank of Chicago,
as Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the 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 Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More from Date of Issue"
(the "Notes"). All terms used but not defined in this Note or in an Addendum
hereto shall have the meanings assigned to such terms in the Indenture or on the
face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on written notice given to the holder hereof not more than 60 nor less
than 30 calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price," if any, shall initially be
the Initial Redemption Percentage specified on the face hereof multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage, if any, shall decline at each anniversary of the Initial Redemption
Date by the Annual Redemption Percentage Reduction, if any, specified on the
face hereof until the Redemption Price is 100% of the unpaid principal amount to
be redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). If an Optional Repayment Date is not set
B-9
<PAGE> 31
forth on the face hereof, this Note will not be repayable at the option of the
holder hereof prior to Maturity. For this Note to be repaid, the Trustee must
receive at its office in the Borough of Manhattan, the City of New York,
referred to on the face hereof, at least 30 days but not more than 60 days prior
to the Repayment Date this Note and the form hereon entitled "Option to Elect
Repayment" duly completed. Exercise of such repayment option by the holder
hereof will be irrevocable. In the event of repayment of this Note in part only,
a new Note of like tenor for the unrepaid portion hereof and otherwise having
the same terms as this Note shall be issued in the name of the holder hereof
upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (i) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (ii) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a
30-day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
coupon rate equal to the initial coupon rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
The interest rate borne by this Note shall be determined as follows:
(i) Unless the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating
Rate Note" or as having an Addendum attached or having "Other/Additional
Provisions," in each case relating to different interest rate formula, this Note
shall be designated as a "Regular Floating Rate Note" and, except as set forth
below or specified on the face hereof or in an Addendum hereto, shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by
the Spread Multiplier, if any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; provided, however, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note," then, except as described
below or specified on the face hereof or in an Addendum hereto, this Note shall
bear interest at the rate determined by reference to the applicable Interest
Rate Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note
B-10
<PAGE> 32
shall be payable shall be reset as of each Interest Reset Date; provided,
however, that (y) the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate and (z) the interest rate in effect for the period commencing on
the Fixed Rate Commencement Date specified on the face hereof to the Maturity
Date shall be the Fixed Interest Rate specified on the face hereof or, if no
such Fixed Interest Rate is specified, the interest rate in effect hereon on the
day immediately preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note," then, except as set forth
below or specified on the face hereof or in an Addendum hereto, this Note shall
bear interest at the Fixed Interest Rate minus the rate determined by reference
to the applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any; provided, however,
that, unless otherwise specified on the face hereof or in an Addendum hereto,
the interest rate hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date; provided, however, that the
interest rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate.
Except as set forth above or specified on the face hereof or in an
Addendum hereto, the interest rate in effect on each day shall be (i) if such
day is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be determined by the Calculation Agent
as of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the 11th District Cost of Funds Rate, which will be
calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate, the Kenny Rate and the Prime Rate will be the second
Business Day immediately preceding the applicable Interest Reset Date; the
"Interest Determination Date" with respect to the 11th District Cost of Funds
Rate shall be the last working day of the month immediately preceding the
applicable Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined below);
and the "Interest Determination Date" with respect to LIBOR shall be the second
London Business Day immediately preceding the applicable Interest Reset Date,
unless the Designated LIBOR Currency is British pounds sterling, in which case
the "Interest Determination Date" will be the applicable Interest Reset Date.
The "Interest Determination Date" with respect to the Treasury Rate shall be the
day in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at an auction held on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday, provided, further, that if the Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date shall be postponed to the next succeeding Business Day.
B-11
<PAGE> 33
If the interest rate of this Note is determined with reference to two or more
Interest Rate Bases specified on the face hereof, the "Interest Determination
Date" pertaining to this Note shall be the most recent Business Day which is at
least two Business Days prior to the applicable Interest Reset Date on which
each Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined as of such date, and the applicable interest rate shall take effect
on the applicable Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs (Secondary Market)", or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit". If such rate is not yet published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks in the market for negotiable United
States dollar certificates of deposit with a remaining maturity closest to the
Index Maturity in an amount that is representative for a single transaction in
that market at that time; provided, however, that if the dealers so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination Date will be the CD Rate in
effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average,
as specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
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<PAGE> 34
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market offered
rates as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers in The City of
New York (each, a "Reference Dealer") selected by the Calculation Agent (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent is
unable to obtain three such Treasury Note quotations, the CMT Rate on such CMT
Rate Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S. $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offered rates obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the Calculation Agent will obtain
quotations for the Treasury Note with the shorter remaining term to maturity and
will use such quotations to calculate the CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service (or any
successor service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)). If no such page is specified on the face hereof, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either one, two, three, five, seven,
10, 20 or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper".
In the event that such rate is not published by 3:00 P.M., New York City time,
on the related Calculation Date, then the Commercial
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<PAGE> 35
Paper Rate on such Commercial Paper Rate Interest Determination Date will be the
Money Market Yield of the rate for commercial paper having the Index Maturity as
published in Composite Quotations under the caption "Commercial--Nonfinancial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate on such Commercial Paper Rate Interest Determination Date will be
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 A.M., New York City
time, on such Commercial Paper Rate Interest Determination Date of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent for commercial paper having the Index Maturity placed for an industrial
issuer whose bond rating is "Aa," or the equivalent, from a nationally
recognized statistical rating organization; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Commercial Paper Rate determined as of such Commercial Paper
Rate Interest Determination Date will be the Commercial Paper Rate in effect on
such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360
--------------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable Interest Reset Period.
11th District Cost of Funds Rate. If an Interest Rate Basis for this
Note is specified on the face hereof as the 11th District Cost of Funds Rate,
the 11th District Cost of Funds Rate shall be determined as of the applicable
Interest Determination Date (an "11th District Cost of Funds Rate Interest
Determination Date") as the rate equal to the monthly weighted average cost of
funds for the calendar month immediately preceding the month in which such 11th
District Cost of Funds Rate Interest Determination Date falls, as set forth
under the caption "11th District" on Telerate Page 7058 as of 11:00 A.M., San
Francisco time, on such 11th District Cost of Funds Rate Interest Determination
Date. If such rate does not appear on Telerate Page 7058 on such 11th District
Cost of Funds Rate Interest Determination Date, then the 11th District Cost of
Funds Rate on such 11th District Cost of Funds Rate Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
of the 11th Federal Home Loan Bank District that was most recently announced
(the "Index") by the FHLB of San Francisco as such cost of funds for the
calendar month immediately preceding such 11th District Cost of Funds Rate
Interest Determination Date. If the FHLB of San Francisco fails to announce the
Index on or prior to such 11th District Cost of Funds Rate Interest
Determination Date for the calendar month immediately preceding such 11th
District Cost of Funds Rate Interest Determination Date, the 11th District Cost
of Funds Rate determined as of such 11th District Cost of Funds Rate Interest
Determination Date will be the 11th District Cost of Funds Rate in effect on
such 11th District Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds
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<PAGE> 36
(Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date, or (b) "LIBOR Telerate" is specified on the
face hereof, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method for calculating LIBOR, the rate for deposits in
the Designated LIBOR Currency having the Index Maturity, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two such
offered rates appear, or if no such rate appears, as applicable, LIBOR on such
LIBOR Interest Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
(ii) with respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in the Designated LIBOR Currency in such
market at such time; provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
B-15
<PAGE> 37
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no such
currency or composite currency is specified on the face hereof, the Designated
LIBOR Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of major banks for the
Designated LIBOR Currency, or (b) if "LIBOR Telerate" is specified on the face
hereof or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the
face hereof as the method for calculating LIBOR, the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on such service (or any
successor service)), for the purpose of displaying the London interbank rates of
major banks for the Designated LIBOR Currency.
Kenny Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the Kenny Rate, the Kenny Rate shall be determined as of the
applicable Interest Determination Date (a "Kenny Rate Interest Determination
Date") as the rate equal to the high grade weekly index (the "Weekly Index") on
such date made available by Kenny Information Systems ("Kenny") to the
Calculation Agent. The Weekly Index is, and shall be, based upon 30 day yield
evaluations at par of bonds, the interest on which is exempt from Federal income
taxation under the Internal Revenue Code of 1986, as amended (the "Code"), of
not less than five high grade component issuers selected by Kenny which shall
include, without limitation, issuers of general obligation bonds. The specific
issuers included among the component issuers may be changed from time to time by
Kenny in its discretion. The bonds on which the Weekly Index is based shall not
include any bonds on which the interest is subject to a minimum tax or similar
tax under the Code, unless all tax-exempt bonds are subject to such tax. In the
event Kenny ceases to make available such Weekly Index, a successor indexing
agent will be selected by the Calculation Agent, such index to reflect the
prevailing rate for bonds rated in the highest short-term rating category by
Moody's Investors Service, Inc. and Standard & Poor's Corporation in respect of
issuers most closely resembling the high grade component issuers selected by
Kenny for its Weekly Index, the interest on which is (A) variable on a weekly
basis, (B) exempt from Federal income taxation under the Code, and (C) not
subject to a minimum tax or similar tax under the Code, unless all tax-exempt
bonds are subject to such tax. If such successor indexing agent is not
available, the rate for any Kenny Rate Interest Determination Date shall be 67%
of the rate determined if the Treasury Rate option had been originally selected.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rates as in effect for such Prime Rate
Interest Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 Page for such Prime Rate Interest Determination Date, then the
Prime Rate shall be the arithmetic mean of the prime rates quoted on the basis
of the actual number of days in the year divided by a 360-day year as of the
close of business on such Prime Rate Interest Determination Date by four major
money center banks in The City of New York selected by the Calculation Agent. If
fewer than four such quotations are so provided, the Prime Rate shall be the
arithmetic mean of four prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York by
the major money center banks, if any, that
B-16
<PAGE> 38
have provided such quotations and by a reasonable number of substitute banks or
trust companies to obtain four such prime rate quotations, provided such
substitute banks or trust companies are organized and doing business under the
laws of the United States, or any State thereof, each having total equity
capital of at least U.S. $500 million and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks or trust
companies so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Prime Rate determined as of such Prime Rate Interest
Determination Date will be the Prime Rate in effect on such Prime Rate Interest
Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on such service (or any
successor service) for the purpose of displaying prime rates or base lending
rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity Date,
as the case may be. At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor
B-17
<PAGE> 39
calculated for each day in the applicable Interest Period. Unless otherwise
specified as the Day Count Convention on the face hereof, the interest factor
for each such date shall be computed by dividing the interest rate applicable to
such day by 360 if the CD Rate, the Commercial Paper Rate, the 11th District
Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime Rate is an
applicable Interest Rate Basis or by the actual number of days in the year if
the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis, or by
365 if Kenny Rate is an applicable Interest Rate Basis. Unless otherwise
specified as the Day Count Convention on the face hereof, the interest factor
for this Note, if the interest rate is calculated with reference to two or more
Interest Rate Bases, shall be calculated in each period in the same manner as if
only the Applicable Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of and premium (if any) and interest on the Notes
either shall automatically become or may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) 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 Note.
As provided in and subject to the provisions of the Indenture, the
holder of this Note 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 hereunder, unless (i) such holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities of this series, (ii) the holders of not less than 25% 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 in its own name as Trustee, (iii) such holder or holders
have offered reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity, and (v) the Trustee
shall not have received, during the 60-day period referenced in clause (iv)
above, from the holders of a majority in principal amount of Securities of this
series at the time Outstanding in a direction inconsistent with such request;
provided that, no one or more holder shall have any right in any manner whatever
by virtue of, or by availing of, any provision of the Indenture to affect,
disturb or prejudice the rights of any other holder, or to obtain or to seek to
obtain priority or preference over any other holder or to enforce any right
under the Indenture, except in the manner therein provided and for the equal and
ratable benefit of all holders. The foregoing shall not apply to any suit
instituted by the holder of this Note 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 at any time by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate
B-18
<PAGE> 40
principal amount of the outstanding Securities of any series, on behalf of the
holders of all such Securities, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes 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 Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the 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 Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Note, or because of any indebtedness
evidenced thereby or hereby, (including without limitation, any obligation or
indebtedness relating to the principal of, or premium or Make-Whole Amount, if
any, interest or any other amounts due, or claimed to be due, on this Security),
or for any claim based thereon or otherwise in respect thereof, shall be had (i)
against Liberty Property Trust or any other partner of the Company, (ii) against
any person which owns an interest, directly or indirectly, in any partner in the
Company, or (iii) against any promoter, as such or, against any past, present or
future stockholder, partner, 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, statue 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 this Note by
the holder thereof and as part of the consideration for the issue of the
Securities of this series. The holder of this Security acknowledges
B-19
<PAGE> 41
by acceptance of this Security that its sole remedies under the Indenture for
any Default by the Company in the payment of principal of, or any premium or
Make-Whole Amount, if any, interest or any amounts due, or claimed to be due, on
this Security, or otherwise, are limited to claims against the property of the
Company as provided in Sections 111 and 503 of the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS NOTE, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS 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.
B-20
<PAGE> 42
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entities ______ Custodian ______
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants Under Uniform Gifts to Minors
in common Act_____________________
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------
ASSIGNMENT
- --------------------------------------------------------------------------------
Please insert social security or other identifying number of assignee.
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including
postal zip code of assignee)
the within Note and all rights thereunder hereby irrevocably constituting and
appointing __________________________, attorney to transfer said Note on the
books of the Trustee, with full power of substitution in the premises.
Dated:_________________, 199__
-----------------------------------------------------
Notice: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular,
without alteration or enlargement or any change whatsoever.
Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
B-21
<PAGE> 43
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at_____________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more than 60
nor less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount to be Repaid: $
Date:
----------------------------------------
Notice: The signature(s) on this Option to Elect
Repayment must correspond with the name(s) as written
upon the face of this Note in every particular,
without alteration or enlargement or any change
whatsoever.
B-22
<PAGE> 1
EXHIBIT 10.5
$200,000,000(1)
LIBERTY PROPERTY LIMITED PARTNERSHIP
(a Pennsylvania Limited Partnership)
MEDIUM TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
October 24, 1997
LEHMAN BROTHERS
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
FIRST CHICAGO CAPITAL MARKETS, INC.
One First National Plaza
Chicago, Illinois 60670
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
UBS SECURITIES LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
Liberty Property Trust, a Maryland real estate investment trust (the
"Company"), and Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Operating Partnership" and, together with the Company, the
"Transaction Entities"), each wish to confirm as follows its agreement with
Lehman Brothers Inc., Donaldson, Lufkin & Jenrette Securities Corporation, First
Chicago Capital Markets, Inc., J.P. Morgan Securities Inc. and UBS Securities
- --------
(1) Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
<PAGE> 2
LLC (individually, an "Agent" and collectively, the "Agents"), with respect to
the issuance and sale by the Operating Partnership, directly to certain
purchasers, including the Agents, of an aggregate of $200,000,000(1) in gross
proceeds of the Operating Partnership's Medium-Term Notes, Series A (the
"Notes"). The Notes are to be issued from time to time pursuant to an Indenture,
dated as of October 24, 1997, as supplemented by a first Supplemental Indenture,
dated as of October 24, 1997 (together, the "Indenture"), between the Operating
Partnership and The First National Bank of Chicago, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates
or interest rate formulas, specified currencies, issue prices, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a) as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Operating Partnership in accordance with
the Indenture and the Procedures referred to below. This Agreement shall only
apply to sales of the Notes and not to sales of any other securities or
evidences of indebtedness of the Operating Partnership and only on the specific
terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Operating Partnership of the right to sell its Notes directly
on its own behalf, the Operating Partnership hereby (i) appoints each of the
Agents, on a non-exclusive basis, as the agent of the Operating Partnership for
the purpose of soliciting and receiving offers to purchase Notes from the
Operating Partnership and (ii) agrees that whenever the Operating Partnership
determines to sell Notes directly to an Agent as principal it will enter into a
separate agreement with such Agent (each, a "Purchase Agreement"). Each such
Purchase Agreement, whether oral (in which case such Purchase Agreement shall be
confirmed in writing within one business day of such Purchase Agreement, which
may be by facsimile transmission) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit C hereto, relating to such
sale in accordance with Section 2(e) hereof.
Capitalized terms used but not otherwise defined herein shall have
the meanings given to those terms in the Prospectus.
1. Representations, Warranties and Agreements of the Transaction
Entities. Each of the Transaction Entities, jointly and severally, represents
and warrants to each Agent, and agrees, as of the date hereof, as of the Closing
Date (defined herein) and as of the times referred to in Sections 6(a) and 6(b)
hereof (the Closing Date and each such time being hereinafter sometimes referred
to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (No. 333-22211) (the
"Registration Statement"), and any amendments thereto, with respect
to one or more series of debt securities of the Operating
Partnership, including the Notes, has (i) been prepared by the
Transaction Entities in conformity with the requirements of the
United States Securities Act of 1933, as amended (the "Securities
Act") and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission")
2
<PAGE> 3
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act; and the
Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"). Copies of such registration
statement and any amendments thereto have been delivered by the
Operating Partnership to you. As used in this Agreement, "Effective
Time" means, for such registration statement, the date and the time
as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by
the Commission; "Effective Date" means, for such registration
statement, the date of the Effective Time; "Registration Statement"
means such registration statement when it became effective under the
Securities Act, and as from time to time amended or supplemented
thereafter (if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the time the most recent such
amendment has been declared effective by the Commission), including
any documents incorporated by reference therein at such time and all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations and
deemed to be a part of such registration statement as of the
Effective Time pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations, and shall include any registration statement filed
pursuant to Rule 462(b) of the Rules and Regulations with respect to
the Registration Statement; "Basic Prospectus" means the prospectus
(including all documents incorporated therein by reference) included
in the Registration Statement; and "Prospectus" means the Basic
Prospectus and any amendments or supplements thereto (including the
applicable Pricing Supplement) relating to the Notes, as filed with
the Commission pursuant to paragraph (b) of Rule 424 of the Rules
and Regulations. Any reference herein to the Registration Statement
or the Prospectus shall be deemed to include the documents
incorporated or deemed to be incorporated by reference therein which
were filed under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"). Any reference herein to amending or
supplementing the Prospectus shall be deemed to include the filing
of materials incorporated by reference in the Prospectus after the
Closing Date (defined herein) and any reference herein to any
amendment or supplement to the Prospectus shall be deemed to include
any such materials incorporated by reference in the Prospectus after
the Closing Date (defined herein). For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or 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").
(b) The Registration Statement conforms in all material
respects, and each Prospectus and any further amendments or
supplements to the Registration Statement or any Prospectus will
conform, when they become effective or are filed with the
Commission, as the case may be, and as of the applicable
Representation Date and at all times during each period during
which, in the opinion of counsel for the Agents, a prospectus
relating to the Notes is required to be delivered under the
Securities Act (each, a "Marketing Period"), in all material
respects to the
3
<PAGE> 4
requirements of the Securities Act, the Exchange Act, the Trust
Indenture Act, and the rules and regulations of the Commission under
such Acts, and do not and will not, as of the Effective Date (as to
the Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto), and as of the applicable Representation Date
and at all times during each Marketing Period, 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 (with respect to the Prospectus, in light of
the circumstances under which they were made); provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Operating Partnership through the Agents by or on behalf of
any Agent specifically for inclusion therein. The Indenture conforms
in all material respects to the requirements of the Trust Indenture
Act and the rules and regulations thereunder; provided, however,
that no representation or warranty is made as to information
contained in or omitted from that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification on Form T-1 under the Trust Indenture Act of the
Trustee under the Indenture. The Prospectus delivered to the Agents
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by
reference into the Registration Statement or any Prospectus have
been, and will be as of the applicable Representation Date and at
all times during each Marketing Period, prepared by the Operating
Partnership in conformity in all material respects with the
applicable requirements of the Securities Act and the Rules and
Regulations and the Exchange Act and the rules and regulations of
the Commission thereunder; and none of such documents contained, or
will contain as of the applicable Representation Date and at all
times during each Marketing Period, an untrue statement of a
material fact or omitted, or will omit, to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and such documents have been, or will be, as
of the applicable Representation Date and at all times during each
Marketing Period, timely filed as required thereby.
(d) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of either of the Transaction Entities, threatened by the Commission
or by the state securities authority of any jurisdiction. No order
preventing or suspending the use of the Prospectus has been issued
and no proceeding for that purpose has been instituted or, to the
knowledge of either of the Transaction Entities, after due inquiry
of the Commission,
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<PAGE> 5
threatened by the Commission or by the state securities authority of
any jurisdiction.
(e) The Company has been duly formed and is validly existing
as a real estate investment trust in good standing under the laws of
the State of Maryland, is duly qualified to do business and is in
good standing in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or
hold its properties, to conduct the business in which it is engaged
and to enter into and perform its obligations under this Agreement.
None of the subsidiaries of the Company (other than the Operating
Partnership, Liberty Property Development Corp. ("Development
Corp."), Liberty Property Development Corp.-II ("Development-II")
and Liberty Special Purpose Corp. ("SP Corp.")) is a "significant
subsidiary," as such term is defined in Rule 405 of the Rules and
Regulations. Except as described in the Prospectus and other than
the Property Affiliates (as defined herein) and the Operating
Partnership, Development Corp., Development-II and SP Corp., the
Company owns no direct or indirect equity interest in any entity,
except for such interests as, in the aggregate, are not material to
the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company and its
subsidiaries considered as a single enterprise.
(f) All of the issued shares of beneficial interest of the
Company have been duly and validly authorized and issued, and are
fully paid and non-assessable. The description of the Common Shares
conforms to the description thereof contained in the Prospectus.
Except as disclosed in the Prospectus, no shares of beneficial
interest of the Company are reserved for any purpose and except for
the equity interests in the Operating Partnership ("Units") and the
Operating Partnership's Exchangeable Subordinated Debentures due
2001 (the "Debentures"), there are no outstanding securities
convertible into or exchangeable for any shares of beneficial
interest of the Company. Except for transactions described in the
Prospectus and transactions in connection with stock option and
other benefit plans, there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or subscribe for
shares of beneficial interest or any other securities of the
Company.
(g) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the Commonwealth of Pennsylvania, is duly qualified to do
business and is in good standing as a foreign limited partnership in
each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, and has all
partnership power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement. The
Company is the sole general partner of the Operating Partnership.
The agreement of limited partnership of the Operating Partnership,
as amended to date (the "Operating Partnership
5
<PAGE> 6
Agreement") is in full force and effect, and the aggregate
percentage interests of the Company and the limited partners in the
Operating Partnership are as set forth in the Prospectus. All of the
Units have been duly and validly authorized and issued, are fully
paid and, to the extent that such interests are owned by the
Company, are owned by the Company free and clear of all liens,
encumbrances, equities or claims.
(h) Development Corp. has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business and
is in good standing in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, and has all corporate power and authority necessary
to own or hold its properties and to conduct the business in which
it is engaged. All of the issued and outstanding capital stock of
Development Corp. has been duly authorized and validly issued and is
fully paid and non-assessable, has been offered and sold in
compliance with all applicable laws (including, without limitation,
federal or state securities laws) and all of the capital stock of
Development Corp. owned by the Operating Partnership, as described
in the Prospectus, is owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim, restriction or equities.
No shares of capital stock of Development Corp. are reserved for any
purpose, and there are no outstanding securities convertible into or
exchangeable for any capital stock of Development Corp., and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any
other securities of Development Corp.
(i) Development-II has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, is duly qualified to do business and
is in good standing in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, and has all corporate power and authority necessary
to own or hold its properties and to conduct the business in which
it is engaged. All of the issued and outstanding capital stock of
Development-II has been duly authorized and validly issued and is
fully paid and non-assessable, has been offered and sold in
compliance with all applicable laws (including, without limitation,
federal or state securities laws) and all of the capital stock of
Development-II owned by the Operating Partnership, as described in
the Prospectus, is owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim, restriction or equities.
No shares of capital stock of Development-II are reserved for any
purpose, and there are no outstanding securities convertible into or
exchangeable for any capital stock of Development-II, and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any
other securities of Development-II.
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<PAGE> 7
(j) SP Corp. has been duly organized and is validly existing
as a corporation in good standing under the laws of the Commonwealth
of Pennsylvania, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification, and has all corporate power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged. All of the issued and outstanding
capital stock of SP Corp. has been duly authorized and validly
issued and is fully paid and non-assessable, has been offered and
sold in compliance with all applicable laws (including, without
limitation, federal or state securities laws) and all of the capital
stock of SP Corp. is owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equities. No shares of capital stock of SP Corp. are
reserved for any purpose, and there are no outstanding securities
convertible into or exchangeable for any capital stock of SP Corp.
and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of such capital
stock or any other securities of SP Corp.
(k) Each of those certain partnerships, limited liability
companies or other entities holding title to one or more of the
Properties (the "Property Affiliates") are the only entities other
than the Operating Partnership through which the Company and the
Operating Partnership own interests in the Properties. Each of the
Property Affiliates has been duly organized and is validly existing
as a limited partnership, limited liability company or other entity
in good standing under the laws of the jurisdiction in which they
are organized, is duly qualified to do business and is in good
standing as a foreign limited partnership in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged. Except as set forth in the
Prospectus, all of the ownership interests of each Property
Affiliate have been duly and validly authorized and issued, are
fully paid and non-assessable and all of the ownership interests
owned directly or indirectly by the Company and the Operating
Partnership, as described in the Prospectus, are owned free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim, restriction or equities.
(l) The Notes have been validly authorized for issuance and
sale pursuant to this Agreement and, when the terms of the Notes and
of their issue and sale have been duly established in accordance
with the Indenture and this Agreement so as not to violate any
applicable law or agreement or instrument then binding on the
Operating Partnership, and the Notes have been duly executed,
authenticated and delivered against payment therefor as provided in
this Agreement and the Indenture, the Notes will be validly issued
and outstanding, and will constitute valid and legally binding
obligations of the Operating Partnership entitled to the benefits of
the Indenture and enforceable in accordance with their terms and the
terms of the Indenture.
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<PAGE> 8
(m) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership, and constitutes a valid and
binding agreement on the part of the Operating Partnership,
enforceable against the Operating Partnership in accordance with its
terms; the Notes and the Indenture conform in all material respects
to the descriptions thereof contained in each Prospectus.
(n) (A) This Agreement has been duly and validly authorized,
executed and delivered by each of the Transaction Entities, and
assuming due authorization, execution and delivery by each of the
Agents, is a valid and binding agreement of each of the Transaction
Entities, enforceable against the Transaction Entities in accordance
with its terms; and (B) the Operating Partnership Agreement and the
partnership agreement of each Property Affiliate, has been duly and
validly authorized, executed and delivered by the parties thereto
and is a valid and binding agreement of the parties thereto,
enforceable against such parties in accordance with its terms.
(o) The execution, delivery and performance of this Agreement
by each of the Transaction Entities, the execution, delivery and
performance of the Indenture, the Notes, and each applicable
Purchase Agreement, if any, by the Operating Partnership, and the
consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of
the terms or provisions of, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the
Company, the Operating Partnership or any of their subsidiaries
pursuant to the terms of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which either of the Transaction Entities
or any of their subsidiaries is a party or by which either of the
Transaction Entities is bound or to which any of the Properties or
other assets of either of the Transaction Entities or any of their
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter, by-laws, certificate of
limited partnership or agreement of limited partnership of either of
the Transaction Entities or any of their subsidiaries, or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over either of the
Transaction Entities or any of their subsidiaries or any of their
respective properties or assets; and except for the registration of
the Notes under the Securities Act and the qualification of the
Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities laws
in connection with the purchase and distribution of the Notes by the
Agents, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this
Agreement by the Transaction Entities or the Notes, each applicable
Purchase Agreement, if any, or the Indenture by the Operating
Partnership, the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Notes.
Compliance by the Operating
8
<PAGE> 9
Partnership with the provisions of the Notes and the Indenture has
been duly authorized by all necessary partnership action.
(p) Since the date of the Indenture, no event has occurred and
is continuing that, had the Notes been issued, would (whether or not
with the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Event of Default
(as defined in the Indenture) under the Indenture.
(q) Other than as described in the Prospectus and other than
rights of persons whose securities are already registered under the
Securities Act, there are no contracts, agreements or understandings
between the Transaction Entities and any person granting such person
the right to require the Company to file a registration statement
under the Securities Act with respect to any securities of either of
the Transaction Entities owned or to be owned by such person or to
require either of the Transaction Entities to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Transaction Entities under
the Securities Act.
(r) Except as described or contemplated in the Prospectus,
neither Transaction Entity has sold or issued any securities during
the six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulation D or S under,
the Securities Act.
(s) Neither of the Transaction Entities nor any of the
Properties has sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss
or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
other than as set forth or contemplated in the Prospectus; and,
since such date, there has not been any material change in the
capital stock or long-term debt of either of the Transaction
Entities or any material adverse change, or any development
involving a prospective material adverse change, in or affecting any
of the Properties or the general affairs, management, financial
position, shareholders' equity or results of operations of either of
the Transaction Entities, other than as set forth or contemplated in
the Prospectus.
(t) The financial statements (including the related notes and
supporting schedules) filed as part of, or incorporated by reference
in, the Registration Statement and the Prospectus present fairly and
will present fairly as of the applicable Representation Date and at
all times during each Marketing Period the financial condition and
results of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been and will
be as of the applicable Representation Date and at all times during
each Marketing Period prepared in conformity with generally accepted
accounting principles
9
<PAGE> 10
applied on a consistent basis throughout the periods involved. The
unaudited financial statements of the Transition Entities, if any,
and the related notes, included or incorporated by reference in each
Prospectus present fairly and will present fairly at all times
during each period specified in Section 3(d) hereof the financial
position of the Company at the dates and for the periods indicated
in conformity with generally accepted accounting principles (except
for the absence of notes) applied on a consistent basis throughout
the periods shown, subject to normally recurring changes resulting
from year-end audit adjustments, and prepared in accordance with the
instructions to Form 10-Q. The Company's ratios of earnings to fixed
charges (actual and, if any, pro forma) included in the Prospectus
under the captions "Ratios of Earnings to Fixed Charges" and in
Exhibit 12.1 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. Pro
forma financial information, if any, included in or incorporated by
reference in the Registration Statement and the Prospectus has been
prepared in accordance with the applicable requirements of the
Securities Act, the Rules and Regulations and AICPA guidelines with
respect to pro forma financial information and includes all
adjustments necessary to present fairly the pro forma financial
position of the respective entity or entities presented therein at
the respective dates indicated and the results of operations for the
respective periods specified.
(u) Ernst & Young LLP, who have certified certain financial
statements of the Operating Partnership, whose reports appear in
each Prospectus or are incorporated by reference therein, are
independent public accountants as required by the Securities Act and
the Rules and Regulations.
(v) (A) The Operating Partnership and the Property Affiliates
have good and marketable title to each of the Properties, free and
clear of all liens, encumbrances, claims, security interests and
defects, other than those referred to in the Prospectus or those
which are not material in amount or those which would not have a
material adverse effect on the business, operations, use or value of
any of the Properties; (B) all liens, charges, encumbrances, claims
or restrictions on or affecting any of the Properties and the assets
of any Transaction Entity which are required to be disclosed in the
Prospectus are disclosed therein; (C) except as otherwise described
in the Prospectus, neither Transaction Entity and, to the knowledge
of the Transaction Entities, no tenant of any of the Properties is
in default under (i) any space leases (as lessor or lessee, as the
case may be) relating to the Properties, or (ii) any of the
mortgages or other security documents or other agreements
encumbering or otherwise recorded against the Properties, in each
case which default would have a material adverse effect on the
applicable Property, and neither Transaction Entity knows of any
event which, but for the passage of time or the giving of notice, or
both, would constitute such a default under any of such documents or
agreements; (D) each of the Properties complies with all applicable
codes, laws and regulations (including, without limitation, building
and zoning codes, laws and regulations and laws relating to access
to the Properties), except for such failures to comply that would
not have a material adverse effect on the
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<PAGE> 11
business operations, use or value of such Property; and (E) neither
Transaction Entity has knowledge of any pending or threatened
condemnation proceedings, zoning change or other proceeding or
action that will in any material manner adversely affect the size
of, use of, improvements on, construction on or access to the
Properties.
(w) Except as described in the Prospectus, the mortgages and
deeds of trust which encumber the Properties are not convertible
into equity securities of the entity owning such Property and said
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized with any property other than other Properties.
(x) Except as described in the Prospectus, the Operating
Partnership and the Property Affiliates have obtained title
insurance on the fee or leasehold interests in each of the
Properties, in an amount at least equal to the greater of (A) the
mortgage indebtedness of each such Property or (B) the purchase
price of each such Property.
(y) Except as disclosed in the Prospectus and except such as
in each case would not have a material adverse effect on any
Property, Property Affiliate, or Transaction Entity or any of their
subsidiaries, taken together as a whole; (A) to the knowledge of the
Transaction Entities, after due inquiry, the operations of the
Company, the Operating Partnership, Development Corp.,
Development-II, SP Corp., and the Properties are in compliance with
all Environmental Laws (as defined below) and all requirements of
applicable permits, licenses, approvals and other authorizations
issued pursuant to Environmental Laws; (B) to the knowledge of the
Transaction Entities, after due inquiry, none of the Transaction
Entities, the Property Affiliates or any Property has caused or
suffered to occur any Release (as defined below) of any Hazardous
Substance (as defined below) into the Environment (as defined below)
on, in, under or from any Property, and no condition exists on, in,
under or adjacent to any Property that could result in the
incurrence of liabilities under, or any violations of, any
Environmental Law or give rise to the imposition of any Lien (as
defined below), under any Environmental Law; (C) none of the
Transaction Entities or Property Affiliates has received any written
notice of a claim under or pursuant to any Environmental Law or
under common law pertaining to Hazardous Substances on, in, under or
originating from any Property; (D) neither of the Transaction
Entities has actual knowledge of, or received any written notice
from any Governmental Authority (as defined below) claiming, any
violation of any Environmental Law or a determination to undertake
and/or request the investigation, remediation, clean-up or removal
of any Hazardous Substance released into the Environment on, in,
under or from any Property; and (E) no Property is included or, to
the knowledge of the Transaction Entities, after due inquiry,
proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information
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<PAGE> 12
System database maintained by the EPA, and neither of the
Transaction Entities has actual knowledge that any Property has
otherwise been identified in a published writing by the EPA as a
potential CERCLA removal, remedial or response site or, to the
knowledge of the Transaction Entities, is included on any similar
list of potentially contaminated sites pursuant to any other
Environmental Law.
As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic substance, pollutant or
hazardous material, including, without limitation, oil, petroleum or
any petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is
subject to regulation under any Environmental Law (including,
without limitation, materials listed in the United States Department
of Transportation Optional Hazardous Material Table, 49 C.F.R.
Section 172.101, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302); "Environment" shall mean
any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings, structures, and
ambient, workplace and indoor and outdoor air; "Environmental Law"
shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq.) ("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. Section 6901, et seq.), the Clean Air
Act, as amended (42 U.S.C. Section 7401, et seq.), the Clean Water
Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et
seq.), the Occupational Safety and Health Act of 1970, as amended
(29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the
Environment or of human health from environmental effects;
"Governmental Authority" shall mean any federal, state or local
governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any lien,
encumbrance, penalty, fine, charge, assessment, judgment or other
liability in, on or affecting such Property; and "Release" shall
mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance.
(z) Each Transaction Entity and their subsidiaries, and each
Property carries, or is covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of its business
and the value of such Property and as is customary for companies
engaged in similar businesses in similar industries.
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(aa) Each Transaction Entity owns or possesses adequate rights
to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of
its business and has no reason to believe that the conduct of its
business will conflict with, and has not received any notice of any
claim of conflict with, any such rights of others.
(bb) Except as described in the Prospectus, there are no legal
or governmental proceedings pending to which either Transaction
Entity or their subsidiaries is a party or of which any property or
assets of either Transaction Entity or their subsidiaries is the
subject which, if determined adversely to such Transaction Entity or
subsidiary, could reasonably be expected to have a material adverse
effect on the consolidated financial position, shareholders' equity,
results of operations, business or prospects of the Company; and,
except as described in the Prospectus, to the best knowledge of the
Transaction Entities, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(cc) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(dd) No relationship, direct or indirect, exists between or
among either of the Transaction Entities on the one hand, and the
trustees, officers, shareholders, customers or suppliers of the
Transaction Entities on the other hand, that is required to be
described in the Prospectus that is not so described.
(ee) No labor disturbance by the employees of either
Transaction Entity exists or, to the knowledge of the Transaction
Entities, is imminent which might be expected to have a material
adverse effect on the consolidated financial position, shareholders'
equity, results of operations, business or prospects of such
Transaction Entity.
(ff) Each Transaction Entity is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect
to any "pension plan" (as defined in ERISA) for which either
Transaction Entity would have any liability; neither Transaction
Entity has incurred or expects to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which either Transaction Entity would have any liability that is
intended to be
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<PAGE> 14
qualified under section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(gg) Each Transaction Entity and their subsidiaries has filed
all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
due thereon, and no material tax deficiency has been determined
adversely to either Transaction Entity or their subsidiaries which
has had (nor does either Transaction Entity have any knowledge of
any tax deficiency which, if determined adversely to it might have)
a material adverse effect on the financial position, shareholders'
equity, results of operations, business or prospects of such
Transaction Entity or subsidiary.
(hh) At all times since June 16, 1994, the Company, the
Operating Partnership, Development Corp., Development-II and SP
Corp. have been, and upon the sale of the Notes will continue to be,
organized and operated in conformity with the requirements for
qualification of the Company as a real estate investment trust under
the Code and the proposed method of operation of the Company, the
Operating Partnership, Development Corp., Development-II and SP
Corp. will enable the Company to continue to meet the requirements
for qualification and taxation as a real estate investment trust
under the Code.
(ii) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed or contemplated in the Prospectus, neither Transaction
Entity has (i) issued or granted any securities (other than in
connection with stock option or other benefit plans, the conversion
of Units to common shares of beneficial interest of the Company, the
issuance of common shares of beneficial interest of the Company in
exchange for Debentures and the issuance of Units in connection with
the acquisition of property), (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any transaction not in the ordinary course of
business nor (iv) declared or paid any dividend on its capital stock
(other than regular quarterly dividends).
(jj) Each Transaction Entity and their subsidiaries (i) makes
and keeps accurate books and records and (ii) maintains internal
accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing
assets at reasonable intervals.
(kk) No Transaction Entity or any of their subsidiaries (i) is
in violation of its charter, by-laws, certificate of limited
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<PAGE> 15
partnership, agreement of limited partnership or other similar
organizational document, (ii) is in default in any material respect,
and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is
bound or to which any of the Properties or any of its other
properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or the Properties or any of
its other properties or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
the Properties or any of its other properties or assets or to the
conduct of its business.
(ll) Neither Transaction Entity, nor any trustee, officer,
agent, employee or other person associated with or acting on behalf
of either Transaction Entity, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(mm) Neither Transaction Entity or any of their subsidiaries
is an "investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(nn) Other than this Agreement and as set forth in the
Prospectus under the heading "Plan of Distribution," there are no
contracts, agreements or understandings between either Transaction
Entity and any person that would give rise to a valid claim against
either Transaction Entity or any Agent for a brokerage commission,
finder's fee or other like payment with respect to the consummation
of the transactions contemplated by this Agreement.
(oo) The Notes have been rated by a "nationally recognized
statistical rating agency" (as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act), including
one or both of Moody's Investor Services, Inc. and Standard & Poor's
Corporation.
(pp) The certificates delivered pursuant to paragraph (h) of
Section 5 hereof and all other documents delivered by the
Transaction Entities or their representatives in connection with the
issuance and sale of the Notes were on the dates on which they were
delivered, or will be on the dates on which they are to be
delivered, true and complete in all material respects.
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(qq) Each Transaction Entity has complied with all applicable
provisions of Florida Statutes Section 517.075, relating to issuers
doing business with Cuba.
2. Solicitations as Agent; Purchases as Principal.
(a) Appointment. Subject to the terms and conditions stated
herein, and subject to the reservation by the Operating Partnership
of the right to sell Notes directly on its own behalf and through or
to other dealers or agents, the Operating Partnership hereby
appoints each of the Agents on a non-exclusive basis as an agent of
the Operating Partnership for the purpose of soliciting or receiving
offers to purchase the Notes from the Operating Partnership by
others. The Operating Partnership may from time to time offer Notes
for sale otherwise than through an Agent; provided, however, that so
long as this Agreement shall be in effect, the Operating Partnership
shall not solicit offers to purchase Notes through any other agent
without amending this Agreement to appoint such agent as an
additional Agent hereunder on the same terms and conditions as
provided herein for the Agents and without giving the Agents prior
notice of such appointment. The consent of the then-current Agents
shall not be necessary for such purpose. In the absence of such an
amendment, the Operating Partnership may accept offers to purchase
Notes from or through an agent other than an Agent, provided that
(i) the Operating Partnership shall not have solicited such offers,
(ii) the Operating Partnership and such agent shall have executed an
agreement with respect to such purchases having terms and conditions
(including, without limitation, commission rates) with respect to
such purchases substantially the same as the terms and conditions
that would apply to such purchases under this Agreement if such
agent was an Agent (which may be accomplished by incorporating by
reference in such agreement the terms and conditions of this
Agreement), and (iii) the Operating Partnership shall provide the
Agents with a copy of such agreement following the execution
thereof. On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Operating Partnership,
to use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus.
Except as otherwise provided herein, so long as this Agreement shall
remain in effect with respect to any Agent, the Operating
Partnership shall not, without the consent of each such Agent,
solicit or accept offers to purchase Notes otherwise than through
one of the Agents; provided, however, the Operating Partnership
expressly reserves the right to sell Notes directly to investors, in
which case no commission will be payable with respect to any such
sale. Each Agent may also purchase Notes from the Operating
Partnership as principal for purposes of resale, as more fully
described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Operating Partnership
reserves the right, in its sole discretion, to suspend solicitation
of offers to purchase the Notes commencing at any time for any
period of time or indefinitely. Upon receipt of at least one
business day's prior written notice from the Operating Partnership,
the Agents will forthwith suspend solicitation of offers to purchase
Notes from the
16
<PAGE> 17
Operating Partnership until such time as the Operating Partnership
has advised the Agents that such solicitation may be resumed. For
the purpose of the foregoing sentence, "business day" shall mean any
day which is not a Saturday or Sunday and which is not a day on
which (i) banking institutions are generally authorized or obligated
by law to close in The City of New York and (ii) The New York Stock
Exchange, Inc. is closed for trading.
Upon receipt of notice from the Operating Partnership as
contemplated by Section 3(d) hereof, each Agent shall suspend its
solicitation of offers to purchase Notes until such time as the
Operating Partnership shall have furnished it with an amendment or
supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 3(d) and shall have advised
such Agent that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale
of any Notes sold by the Operating Partnership as a result of a
solicitation made by or offer to purchase received by an Agent, the
Operating Partnership agrees to pay such Agent a commission in
accordance with the schedule set forth in Schedule A hereto.
(d) Solicitation of Offers. The Agents are authorized to
solicit offers to purchase the Notes only in denominations as are
specified in the Prospectus at a purchase price as shall be
specified by the Operating Partnership. Each Agent shall communicate
to the Operating Partnership, orally or in writing, each reasonable
offer to purchase Notes received by it as an Agent. The Operating
Partnership shall have the sole right to accept offers to purchase
the Notes and may reject any such offer in whole or in part. Each
Agent shall have the right, in its discretion reasonably exercised
without advising the Operating Partnership, to reject any offer to
purchase the Notes received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained
herein.
No Note which the Operating Partnership has agreed to sell
pursuant to this Agreement shall be deemed to have been purchased
and paid for, or sold by the Operating Partnership, until such Note
shall have been delivered to the purchaser thereof against payment
by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale), shall be
made in accordance with the terms of this Agreement and a Purchase
Agreement, whether oral (in which case such Purchase Agreement shall
be confirmed in writing within one business day of such Purchase
Agreement by such Agent to the Operating Partnership, which may be
by facsimile transmission) or in writing, which will provide for the
sale of such Notes to, and the purchase thereof by, such Agent. A
Purchase Agreement may also specify certain provisions relating to
the reoffering of such Notes by such Agent. The commitment of any
Agent to purchase Notes from the Operating
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<PAGE> 18
Partnership as principal shall be deemed to have been made on the
basis of the representations and warranties of the Transaction
Entities herein contained and shall be subject to the terms and
conditions herein set forth. Each Purchase Agreement shall contain,
to the extent applicable, those terms specified in Exhibit A hereto,
including the principal amount and terms of the Notes to be
purchased by an Agent, the time and date (each such time and date
being referred to herein as a "Time of Delivery") and place of
delivery of and payment for such Notes and such other information
(as applicable) as is set forth in Exhibit C hereto. The Operating
Partnership agrees that if any Agent purchases Notes as principal
for resale such Agent shall receive such compensation, in the form
of a discount or otherwise, as shall be indicated in the applicable
Purchase Agreement or, if no compensation is indicated therein, a
commission in accordance with Schedule A hereto. Any Agent may
utilize a selling or dealer group in connection with the resale of
such Notes. In addition, any Agents may offer the Notes they have
purchased as principal to other dealers. Any Agent may sell Notes to
any dealer at a discount and, unless otherwise specified in the
applicable Pricing Supplement, such discount allowed to any dealer
will not be in excess of 66 2/3% of the discount to be received by
such Agent from the Operating Partnership. Such Purchase Agreement
shall also specify any requirements for delivery of opinions of
counsel, accountant's letters and officers' certificates pursuant to
Section 5 hereof.
(f) Administrative Procedures. The purchase price, interest
rate or formula, maturity date and other terms of the Notes (as
applicable) specified in Exhibit A hereto shall be agreed upon by
the Operating Partnership and the applicable Agent or Agents and
specified in a Pricing Supplement to be prepared in connection with
each sale of Notes. Administrative procedures respecting the sale of
Notes (the "Procedures") are set forth in Exhibit B hereto and may
be amended in writing from time to time by the Agents and the
Operating Partnership. Each Agent and the Operating Partnership
agree to perform the respective duties and obligations specifically
provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions
contemplated hereunder including sales of Notes to any Agent as
principal pursuant to a Purchase Agreement, unless otherwise set
forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices of
Rogers & Wells, 200 Park Avenue, New York, New York 10166, not later
than 10:00 A.M., New York City time, on the date of this Agreement
or at such later time as may be mutually agreed upon by the Company
and the Agents, which in no event shall be later than the time at
which the Agents commence solicitation of offers to purchase Notes
hereunder (the "Closing Date").
3. Further Agreements of the Transaction Entities. Each of the
Transaction Entities jointly and severally agrees:
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<PAGE> 19
(a) To prepare the Prospectus in a form approved by the Agents
and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on
the fifth business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by
Rule 424 or Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus except in accordance with Section 3(d) hereof; to
advise the Agents, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Agents with
copies thereof; to advise the Agents, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the Prospectus,
of the suspension of the qualification of the Notes for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to the Agents and to counsel for the
Agents such number of conformed copies as the Agents shall
reasonably request of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith or
incorporated by reference therein and all documents incorporated by
reference therein;
(c) To deliver promptly to the Agents such number of the
following documents as the Agents shall reasonably request: (i) the
Basic Prospectus, (ii) each Prospectus and any amended or
supplemented Prospectus and (iv) any documents incorporated by
reference into the Prospectus.
(d) If, during any Marketing Period, any event occurs as a
result of which the Prospectus would include an untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to
amend any Prospectus to comply with the Securities Act, to notify
the Agents promptly, in writing, to suspend solicitation of
purchases of the Notes; and if the Operating Partnership shall
decide to amend or supplement the Registration Statement or any
Prospectus, to promptly advise the Agents by telephone (with
confirmation in writing) and to promptly, in writing, prepare and
file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance; provided, however, that if during the period
referred to above any Agent shall own any Notes which it has
purchased from the Operating Partnership as principal
19
<PAGE> 20
with the intention of reselling them, the Operating Partnership
shall promptly prepare and timely file with the Commission any
amendment or supplement to the Registration Statement or any
Prospectus that may, in the judgment of the Operating Partnership or
the Agents, be required by the Securities Act or requested by the
Commission. The aforementioned documents furnished to the Agents
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Operating Partnership or
counsel for the Agents, be required by the Securities Act or
requested by the Commission;
(f) To timely file with the Commission during any Marketing
Period, all documents (and any amendments to previously filed
documents) required to be filed by the Operating Partnership
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) Prior to filing with the Commission during any Marketing
Period, any amendment to the Registration Statement or supplement to
any Prospectus or any Prospectus pursuant to Rule 424 of the Rules
and Regulations or any document incorporated by reference in any of
the foregoing or any amendment of or supplement to any such
incorporated document, to furnish a copy thereof to the Agents and
counsel for the Agents within a reasonable period of time prior to
the filing thereof, and that filing thereof shall not occur if the
Agents shall have objected in good faith thereto;
(h) To advise the Agents promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the
Notes becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration
Statement, to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information
and the Operating Partnership will afford the Agents a reasonable
opportunity to comment on any such proposed amendment or supplement,
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any part thereof
or any order directed to any Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in any Prospectus, (iv) of
receipt by the Operating Partnership of any notification with
respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threat of any proceeding
for that purpose, (v) of any downgrading in the rating of the Notes
or any other debt securities of the Operating Partnership, or any
proposal to downgrade the rating of the Notes or any other debt
securities of the Operating Partnership, by any "nationally
20
<PAGE> 21
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Operating Partnership (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading of such rating) as soon as
the Operating Partnership learns of any such downgrading, proposal
to downgrade or public announcement and (vi) of the happening of any
event which makes untrue in any material respect any statement of a
material fact made in the Registration Statement or any Prospectus
or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement
therein, in light of the circumstances under which it was made, not
misleading.
(i) If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time.
(j) As soon as practicable after the date of each acceptance
by the Operating Partnership of an offer to purchase Notes
hereunder, but not later than 18 months after any such offer, to
make generally available to its security holders an earnings
statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the Registration Statement,
(ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date
of such acceptance and (iii) the date of the Operating Partnership's
most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such acceptance which will satisfy the
provisions of Section 11(a) of the Act (including, at the option of
the Operating Partnership, Rule 158 of the Rules and Regulations
under the Act);
(k) So long as any of the Notes are outstanding, to furnish to
the Agents, not later than the time the Operating Partnership makes
the same available to others, copies of all public reports or
releases and all reports and financial statements furnished by the
Operating Partnership to any securities exchange on which the Notes
are listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder.
(l) Promptly from time to time to take such action as the
Agents may reasonably request to qualify the Notes for offering and
sale under the securities, real estate syndication or Blue Sky laws
of such jurisdictions as the Agents may designate and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, except that the Operating
Partnership shall not be required in connection therewith to qualify
as a foreign limited partnership or to execute a consent to service
of process in any jurisdiction;
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<PAGE> 22
(m) Between the date of a Purchase Agreement and the date of
delivery of the Notes specified therein, neither of the Transaction
Entities will, directly or indirectly, offer for sale, contract to
sell, sell or otherwise dispose of, or register for sale under the
Securities Act, any debt securities, or sell or grant options,
rights or warrants with respect to any debt securities, without the
prior written consent of Lehman Brothers Inc., other than borrowings
under the Operating Partnership's revolving credit agreements and
lines of credit, the private placement of securities and issuances
of its commercial paper;
(n) To apply the net proceeds from the sale of the Notes in
accordance with the description set forth in the Prospectus under
the caption "Use of Proceeds";
(o) To take such steps as shall be necessary to ensure that
neither the Company, the Operating Partnership nor any of their
subsidiaries shall become an "investment company" within the meaning
of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder;
(p) Except as stated in this Agreement and the Prospectus,
neither Transaction Entity has taken, nor will take, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Notes to facilitate the sale or resale of the Notes;
(q) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust"
under the Code; and
(r) If this Agreement shall be terminated by the Agents
because of any failure or refusal on the part of the Transaction
Entities to comply with the terms or fulfill any of the conditions
of this Agreement, the Transaction Entities jointly and severally
agree to reimburse the Agents for all reasonable out-of-pocket
expenses (including fees and expenses of counsel for the Agents)
incurred by the Agents in connection herewith through the date of
such termination.
(s) To prepare, with respect to any Notes to be sold through
or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the
Agents and to file such Pricing Supplement pursuant to Rule 424
under the Act with the Commission(2).
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(2) If clause (b)(3) of Rule 424 is applicable, such filing shall be made no
later than the fifth business day following the earlier of the date of
determination of the settlement information described below or the date
such Pricing Supplement is first used. If clause (b)(2) or (b)(5) of Rule
424 is applicable, such filing shall be made no later than the second
business day following the earlier of the date of determination of the
settlement information or the date such Pricing Supplement is first used.
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<PAGE> 23
4. Expenses. The Transaction Entities jointly and severally agree to
pay (a) the costs incident to the authorization, issuance, sale and delivery of
the Notes and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
incident to the preparation, printing and filing of any document and any
amendments and exhibits thereto required to be filed by the Operating
Partnership under the Exchange Act; (d) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including, in each case, exhibits), the Basic
Prospectus, each Prospectus, any supplement or amendment to any Prospectus and
any documents incorporated by reference in any of the foregoing documents; (e)
the fees and disbursements of the Trustee, any paying agent, any calculation
agent, any exchange rate agent and any other agents appointed by the Operating
Partnership, and their respective counsel; (f) the costs and fees in connection
with the listing of the Notes on any securities exchange; (g) the cost and fees
in connection with any filings with the National Association of Securities
Dealers, Inc.; (h) the fees and disbursements of counsel to the Operating
Partnership and counsel to the Agents; (i) the fees paid to rating agencies in
connection with the rating of the Notes; (j) the fees and expenses of qualifying
the Notes under the securities laws of the several jurisdictions as provided in
Section 3(l) hereof and of preparing and printing a Blue Sky Memorandum and a
memorandum concerning the legality of the Notes as an investment (including fees
and expenses of counsel for the Agents in connection therewith); (k) all
advertising expenses in connection with the offering of the Notes incurred with
the consent of the Operating Partnership; and (l) all other costs and expenses
arising out of the transactions contemplated hereunder and incident to the
performance of the Operating Partnership's obligations under this Agreement or
otherwise in connection with the activities of the Agents under this Agreement.
5. Conditions of Agents' Obligations. The respective obligations of
the Agents under this Agreement, as agents of the Operating Partnership, to
solicit offers to purchase the Notes; the obligation of any person who has
agreed to purchase, make payment for and take delivery of Notes; and the
obligation of any Agent to purchase Notes pursuant to any Purchase Agreement,
are all subject to (i) the accuracy, on each Representation Date, of the
representations and warranties of the Transaction Entities contained herein,
(ii) the accuracy of the statements of the Transaction Entities' officers made
in any certificate furnished pursuant to the provisions hereof, (iii) the
performance by the Transaction Entities of each of its obligations hereunder and
(iv) each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to such Notes shall have been filed
with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 3(s) hereof; no stop
order suspending the effectiveness of the Registration Statement or
any part thereof nor any order directed to any document incorporated
by reference in any Prospectus shall have been issued and no stop
order proceeding shall have been initiated or threatened by the
Commission and no challenge shall have been made to the accuracy or
adequacy of any document incorporated by reference in any
Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statement or any
Prospectus or
23
<PAGE> 24
otherwise shall have been complied with; and the Operating
Partnership shall not have filed with the Commission any amendment
or supplement to the Registration Statement or any Prospectus (or
any document incorporated by reference therein) without the consent
of the Agents.
(b) No order suspending the sale of the Notes in any
jurisdiction designated by the Agents pursuant to Section 3(l)
hereof shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(c) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting the condition, financial or
otherwise, business, properties, net worth, or results of operations
of either Transaction Entity or any of their subsidiaries or any
Property not contemplated by the Prospectus, which, in the opinion
of the Agents, would materially adversely affect the market for the
Notes, or (ii) any event or development relating to or involving
either Transaction Entity, or any partner, officer, director or
trustee of either Transaction Entity, which makes any statement of a
material fact made in the Prospectus untrue or which, in the opinion
of the Company and its counsel or the Agents and their counsel,
requires the making of any addition to or change in the Prospectus
in order to state a material fact required by the Securities Act or
any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your
opinion, materially adversely affect the market for the Notes.
(d) All corporate and partnership proceedings and other legal
matters incident to the authorization, form and validity of this
Agreement, the Indenture, the Notes, the Registration Statement and
each Prospectus, and all other legal matters relating to this
Agreement, the Indenture, the Notes, the Registration Statement and
the Prospectus and the transactions contemplated hereby and thereby
shall be reasonably satisfactory in all material respects to counsel
for the Agents, and the Transaction Entities shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(e) (A) At the Closing Date, the Agents shall have received
the opinion, addressed to the Agents and dated the Closing Date, of
Wolf, Block, Schorr and Solis-Cohen LLP, counsel to the Transaction
Entities, in form and substance satisfactory to the Agents and their
counsel, to the effect that:
(i) The Company is in good standing as a
foreign trust or corporation in those jurisdictions listed in
such opinion.
(ii) The Operating Partnership has been duly
formed and is validly existing as a limited partnership under
the laws of the Commonwealth of Pennsylvania, is duly
qualified to do business as a
24
<PAGE> 25
foreign limited partnership in Delaware, Florida, Maryland,
Michigan, Minnesota, New Jersey, North Carolina, South
Carolina, Tennessee, Texas and Virginia, and has all
partnership power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged as
described in the Registration Statement and the Prospectus,
and to enter into and perform its obligations under this
Agreement. The Company is the sole general partner of the
Operating Partnership. The Operating Partnership Agreement is
in full force and effect, and the aggregate percentage
interests of the Company and the limited partners in the
Operating Partnership are as set forth in the Prospectus. All
of the partnership interests of the Operating Partnership have
been duly and validly authorized and issued, are fully paid
and, to the extent that such interests are owned by the
Company, are owned by the Company free and clear of all liens,
encumbrances, equities or claims.
(iii) Development Corp. has been duly formed
and is validly existing as a corporation in good standing
under the laws of the Commonwealth of Pennsylvania, is duly
qualified to do business and is in good standing as a foreign
corporation in Delaware, Florida, Maryland, New Jersey and
North Carolina, and has all corporate power and authority
necessary to own or hold its properties and to conduct the
business in which it is engaged as described in the
Registration Statement and the Prospectus. All of the issued
and outstanding capital stock of Development Corp. has been
duly authorized and validly issued and is fully paid and
non-assessable, has been offered and sold in compliance with
all applicable laws (including, without limitation, federal or
state securities laws) and all of the capital stock of
Development Corp. owned by the Operating Partnership, as
described in the Prospectus, is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equities.
(iv) Development-II has been duly formed and
is validly existing as a corporation in good standing under
the laws of the Commonwealth of Pennsylvania, and has all
corporate power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged
as described in the Registration Statement and the Prospectus.
All of the issued and outstanding capital stock of
Development-II has been duly authorized and validly issued and
is fully paid and non-assessable, has been offered and sold in
compliance with all applicable laws (including, without
limitation, federal or state securities laws) and all of the
capital stock of Development-II owned by the Operating
Partnership, as described in the Prospectus, is owned free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim, restriction or equities.
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<PAGE> 26
(v) SP Corp. has been duly formed and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Pennsylvania and has all corporate
and authority necessary to own or hold its properties and to
conduct the business in which it is engaged as described in
the Registration Statement and the Prospectus. All of the
issued and outstanding capital stock of SP Corp. has been duly
authorized and validly issued and is fully paid and
non-assessable, is owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equities and has been offered and sold in
compliance with all applicable laws (including, without
limitation, federal or state securities laws).
(vi) Each of the Property Affiliates has been
duly organized and is validly existing as a limited
partnership in good standing under the laws of the
Commonwealth of Pennsylvania, and has all partnership power
and authority necessary to own or hold its properties and to
conduct the business in which it is engaged. Except as set
forth in the Prospectus, all of the partnership interests of
each Property Affiliate have been duly and validly authorized
and issued, are fully paid and non-assessable and all of the
partnership interests owned directly or indirectly by the
Company and the Operating Partnership, as described in the
Prospectus, are owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim, restriction or
equities.
(vii) (A) This Agreement has been duly and
validly authorized, executed and delivered by the Operating
Partnership, and has been duly and validly executed and
delivered by the Company, and assuming due authorization,
execution and delivery by the Agents and due authorization by
the Company, is a valid and binding agreement of the Operating
Partnership; and (B) the partnership agreement of each
Property Affiliate has been duly and validly authorized,
executed and delivered by the Operating Partnership, and each
such agreement and the Operating Partnership Agreement have
been duly and validly executed and delivered by the Company,
and assuming due authorization by the Company, each such
agreement is a valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with
its terms.
(viii) (A) The Indenture has been duly
authorized, executed and delivered by the Operating
Partnership, duly qualified under the Indenture Act and
(assuming due authorization, execution and delivery by the
Trustee) constitutes a valid and binding agreement on the part
of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms; and (B)
the Indenture conforms in all material respects to the
descriptions thereof contained in the Registration Statement
and the Prospectus.
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(ix) The Notes are in a form contemplated by
the Indenture and have been validly authorized for issuance
and sale pursuant to this Agreement and, when the terms of the
Notes and of their issue and sale have been duly established
in accordance with the Indenture and this Agreement so as not
to violate any applicable law or agreement or instrument then
binding on the Operating Partnership, and when the Notes have
been duly executed, authenticated and delivered against
payment therefor as provided in this Agreement and the
Indenture, the Notes will be validly issued and outstanding,
and will constitute valid and legally binding obligations of
the Operating Partnership entitled to the benefits of the
Indenture and enforceable in accordance with their terms and
the terms of the Indenture. The terms of the Notes conform in
all material respects to all statements and descriptions
related thereto contained in the Registration Statement and
the Prospectus. The Notes rank and will rank on a parity with
all unsecured indebtedness (other than subordinated
indebtedness of the Operating Partnership that was outstanding
on the date of the applicable Pricing Supplement or that may
be incurred thereafter), and senior to all subordinated
indebtedness of the Operating Partnership that was outstanding
on the date of the applicable Pricing Supplement or that may
be incurred thereafter, except that the Notes will be
effectively subordinated to the prior claims of each secured
mortgage lender to any specific Property which secures such
lender's mortgage.
(x) To the knowledge of such counsel, the
execution, delivery and performance of this Agreement by each
of the Transaction Entities, the execution, delivery and
performance of the Indenture, the Notes, and each applicable
Purchase Agreement, if any, by the Operating Partnership, the
consummation of the transactions contemplated hereby and
thereby, and the compliance by the Operating Partnership with
the provisions of the Notes and the Indenture, will not
conflict with or result in a breach or violation of any of the
terms or provisions of, result in the creation or imposition
of any lien, charge or encumbrance upon any of the assets of
either of the Transaction Entities or any of their
subsidiaries pursuant to the terms of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which either of the
Transaction Entities or their subsidiaries is a party or by
which either of the Transaction Entities or their subsidiaries
is bound or to which any of the Properties or other assets of
either of the Transaction Entities is subject, nor will such
actions result in any violation of the provisions of the
charter, by-laws, certificate of limited partnership or
agreement of limited partnership of either of the Transaction
Entities or their subsidiaries, or any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over either of the Transaction Entities or
any of their properties or assets; and except for the
registration of the Notes under the Securities Act and the
qualification of the Indenture under the Trust Indenture Act
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<PAGE> 28
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the
issuance and delivery of the Notes by the Company and the
purchase and distribution of the Notes by the Agents, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement by the Transaction Entities or the Notes,
each applicable Purchase Agreement, if any, or the Indenture
by the Operating Partnership, the consummation of the
transactions contemplated hereby and thereby, and the issuance
and delivery of the Notes.
(xi) (A) The issuance and delivery of the
Notes by the Operating Partnership and the compliance by the
Operating Partnership with all of the provisions of this
Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by all
necessary partnership action; and (B) the execution, delivery
and performance of this Agreement by each of the Transaction
Entities and the consummation of the transactions contemplated
hereby will not conflict with or result in any violation of
the provisions of the charter, by-laws, certificate of limited
partnership or agreement of limited partnership of either of
the Transaction Entities or their subsidiaries.
(xii) Except as set forth in the Prospectus,
to the knowledge of such counsel, there are no preemptive or
other rights to subscribe for or to purchase, nor any
restriction upon the transfer of, the Notes pursuant to the
Operating Partnership's certificate of limited partnership,
its agreement of limited partnership, as amended to the date
hereof, or any agreement or other instrument to which the
Operating Partnership is a party.
(xiii) To the knowledge of such counsel, other
than as set forth in the Prospectus and other than rights of
persons whose securities are already registered under the
Securities Act, there are no contracts, agreements or
understandings between the Company and/or the Operating
Partnership, on the one hand, and any person, on the other,
granting such person the right to require the Company or the
Operating Partnership to file a registration statement under
the Securities Act with respect to any securities of the
Company or the Operating Partnership owned or to be owned by
such person or to require the Company or the Operating
Partnership to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company or the Operating Partnership
under the Securities Act.
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(xiv) To the knowledge of such counsel, there
are no legal or governmental proceedings pending to which
either Transaction Entity or their subsidiaries is a party or
of which any property or assets of either Transaction Entity
or their subsidiaries is the subject which are not disclosed
in the Prospectus and which, if determined adversely to such
Transaction Entity or subsidiary, might reasonably be expected
to have a material adverse effect on the consolidated
financial position, owners' equity, results of operations,
business or prospects of the Company; and to the knowledge of
such counsel no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(xv) To the knowledge of such counsel, there
are no contracts or other documents which are required by the
Securities Act or by the Rules and Regulations to be described
in the Prospectus or filed as exhibits to the Registration
Statement which have not been described in the Prospectus or
filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules
and Regulations.
(xvi) To the knowledge of such counsel, no
relationship, direct or indirect, exists between or among
either of the Transaction Entities on the one hand, and the
trustees, officers, shareholders, customers or suppliers of
the Transaction Entities on the other hand, which is required
to be described in the Prospectus which is not so described.
(xvii) To the knowledge of such counsel, each
Transaction Entity is in compliance in all material respects
with all presently applicable provisions of ERISA; to the
knowledge of such counsel, no "reportable event" (as defined
in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which either Transaction Entity would
have any liability; to the knowledge of such counsel, neither
Transaction Entity has incurred or expects to incur, liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) section 412 or
4971 of the Code; and, to the knowledge of such counsel, each
"pension plan" for which either Transaction Entity would have
any liability that is intended to be qualified under section
401(a) of the Code is so qualified in all material respects
and, to the knowledge of such counsel, nothing has occurred,
whether by action or by failure to act, which would cause the
loss of such qualification.
(xviii) No Transaction Entity or Property
Affiliate is in violation of its charter, by-laws, certificate
of limited partnership, agreement of limited partnership, or
other similar organizational document, or, to the knowledge of
such counsel, has a default been asserted in any
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<PAGE> 30
respect, and, to the knowledge of such counsel, it has not
been asserted that any event has occurred which, with notice
or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed
of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or
to which any of the Properties or any of its other properties
or assets is subject.
(xix) No consent, approval, authorization or
other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental
body, agency, or official is required to the date hereof on
the part of the Company (except as have been obtained under
the Securities Act and the Exchange Act or such as may be
required under state securities, real estate syndication or
Blue Sky laws governing the purchase and distribution of the
Notes) for the valid issuance and sale of the Notes to the
Agents as contemplated by this Agreement.
(xx) Neither Transaction Entity or their
subsidiaries is an "investment company" within the meaning of
such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
(xxi) The Operating Partnership is not
required to register under the provisions of the Investment
Company Act; and no action need be taken with respect to or
under the Investment Company Act by reason of the issuance of
the Notes by the Operating Partnership.
(xxii) The documents incorporated or deemed to
be incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the Securities Act (other than the
financial statements and related schedules and financial
information and data included therein, as to which no opinion
need be rendered), at the time they were filed with the
Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and
regulations thereunder.
(xxiii) The Registration Statement was
declared effective under the Securities Act and the Indenture
was duly qualified under the Trust Indenture Act as of the
date and time specified in such opinion, the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion
on the date specified therein and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge
of such counsel, no proceeding for that purpose is pending or
threatened by the Commission.
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<PAGE> 31
(xxiv) To the knowledge of such counsel, no
order directed to any document incorporated by reference in
the Prospectus has been issued and no assertion of a material
misstatement or omission regarding any such document has been
made.
(xxv) The Registration Statement and the
Prospectus (other than the financial statements and related
schedules and other financial information and data included
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act, the Rules and Regulations
and the Trust Indenture Act and the rules and regulations
thereunder, and the Indenture conforms in all material
respects to the requirements of the Trust Indenture Act and
the rules and regulations thereunder.
(xxvi) The Operating Partnership is classified
as a partnership (and is not taxed as a corporation) for
federal income tax purposes.
(xxvii) The statements contained in the
Prospectus under the captions "Risk Factors," "Description of
Debt Securities," "Description of Notes," and "Special
Provisions Relating to Multi-Currency Notes," insofar as those
statements are descriptions of contracts, agreements or other
legal documents, or they describe federal statutes, rules and
regulations, and except to the extent such statements are
statistics or calculations, constitute a fair summary thereof.
(xxviii) The description contained in the
Prospectus under the headings "Federal Income Tax
Considerations," and "Certain United States Federal Income Tax
Considerations," while not purporting to discuss all possible
income tax ramifications of the proposed issuance, is correct
in all material respects.
Such counsel shall state that Rogers & Wells, counsel
for the Agents, may rely on its opinion.
In rendering such opinion, such counsel may (i) state
that its opinion is limited to matters governed by the Federal laws
of the United States of America, the laws of the Commonwealth of
Pennsylvania and the laws of the State of Maryland; (ii) as to
matters of Maryland law, state that its opinion is given solely in
reliance upon the opinion of Weinberg & Green LLC; (iii) state that
its opinion does not address (A) Federal Reserve Board margin
regulations; (B) Federal or state antitrust and unfair competition
laws and regulations; (C) Local Laws (as defined in The Legal
Opinion Accord of the ABA Section of Business Law (1991); (D)
compliance with fiduciary duty requirements; (E) Federal and state
racketeering laws and regulations; (F) Federal and state health and
safety laws and regulations; and (G) Federal and state laws,
regulations and policies
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<PAGE> 32
concerning (x) national and local emergency, (y) possible judicial
deference to acts of foreign states, and (z) criminal and civil
forfeiture laws; and (iv) in giving the opinion referred to in
subclause (B) in Section 5(e)(A)(vii)(A), state that such opinion
with respect to the enforceability of such documents may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors'
rights generally and by general equitable principles. Such counsel
shall also have furnished to the Agents a written statement,
addressed to the Agents and dated the Closing Date, in form and
substance satisfactory to the Agents, to the effect that (x) such
counsel has acted as counsel to the Transaction Entities in
connection with the preparation of the Registration Statement and
the Prospectus and (y) based on the foregoing, no facts have come to
the attention of such counsel which lead it to believe that the
Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains
any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or that any documents incorporated by
reference in the Prospectus, when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Securities Act, 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, and in the case of other documents which
were filed under the Securities Act of the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading. The
foregoing opinions and statement may be qualified by a statement to
the effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statement, the Prospectus or any documents
incorporated by reference in the Prospectus except to the extent of
the opinion contained in Section 5(e)(A)(xxv), and may state that
such counsel expresses no belief with respect to the financial
statements and notes thereto and other financial information and
data included or incorporated by reference in, or omitted from, the
Registration Statement or the Prospectus or the Statement of
Eligibility on Form T-1 of the Trustee.
(B) At the Closing Date, the Agents shall have
received the opinion, addressed to the Agents and dated the Closing
Date, of Weinberg & Green LLC, Maryland counsel to the Company, in
form and substance reasonably satisfactory to the Agents and their
counsel, to the effect that:
(i) The Company has been duly formed and is
validly existing as a real estate investment trust in good
standing under and by virtue of the laws of the State of
Maryland, is in good standing with the
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State Department of Assessments and Taxation of Maryland, and
has all trust power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged
as described in the Registration Statement and the Prospectus,
and to enter into and perform its obligations under this
Agreement.
(ii) This Agreement has been duly and validly
authorized, executed and delivered by the Company, and
assuming due authorization, execution and delivery by the
Agents and the Operating Partnership, is a valid and binding
agreement of the Company.
(iii) To the knowledge of such counsel, the
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby will not conflict with or result in any violation of
the provisions of any statute or any order, rule or regulation
of any court or governmental agency or body of the State of
Maryland that has jurisdiction over the Company or any of its
properties or assets.
(iv) The execution, delivery and performance
of this Agreement by the Company and the consummation of the
transactions contemplated hereby will not conflict with or
result in any violation of the provisions of the Declaration
of Trust or by-laws of the Company.
(v) To the knowledge of such counsel, there
are no legal or governmental proceedings pending to which the
Company is a party or of which any property or assets of the
Company is the subject which are not disclosed in the
Prospectus and which, if determined adversely to the Company,
might reasonably be expected to have a material adverse effect
on the consolidated financial position, shareholders' equity,
results of operations, business or prospects of the Company;
and to the knowledge of such counsel no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
Such counsel shall state that Rogers & Wells, counsel
for the Agents, may rely on its opinion.
(f) The Agents shall have received from Rogers & Wells,
counsel for the Agents, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Notes, the
Registration Statement, the Prospectus and other related matters as
the Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(g) The Operating Partnership shall have furnished to the
Agents on the Closing Date a letter of Ernst & Young LLP, addressed
jointly to the Operating
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<PAGE> 34
Partnership and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 49, in form and substance
reasonably satisfactory to the Agents confirming that they are
independent accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in
effect that:
(i) In their opinion, the financial statements
and schedules examined by them and included in the prospectus
contained in the Registration Statement comply in form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) They have made a review of any unaudited
financial statements included in the Prospectus in accordance
with standards established by the American Institute of
Certified Public Accountants, as indicated in their report or
reports attached to such letter;
(iii) On the basis of the review referred to in
(ii) above and a reading of the latest available interim
financial statements of the Operating Partnership, inquiries
of officials of the Operating Partnership who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
A. the unaudited financial statements,
if any, included in the Prospectus do not comply in form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in the Prospectus;
B. the unaudited capsule information,
if any, included in the Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements from which it was derived or was not determined on
a basis substantially consistent with that of the audited
financial statements included in the Prospectus;
C. at the date of the latest available
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the Closing
Date, there was any change in the capital stock, any increase
in short-term indebtedness or long-term debt of the Operating
Partnership and consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or
net assets as
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compared with amounts shown on the latest balance sheet
included in the Prospectus; or
D. for the period from the date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year, in consolidated
rental income, total revenues, net income or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses C. and D. above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) They have compared specified dollar
amounts (or percentages derived from such dollar amounts) and
other financial information contained in the Prospectus (in
each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(h) The Transaction Entities shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date, of
the Chairman of the Board, Chief Executive Officer, President or a
Vice President of the Company and the Chief Financial Officer,
Treasurer or an Assistant Treasurer of the Company (in each case,
for the Company and for the Company as general partner of the
Operating Partnership) stating that:
(i) The representations, warranties and
agreements of the Company in Section 1 hereof are true and
correct as of the Closing Date; each Transaction Entity has
complied with all its agreements contained herein; and the
conditions set forth in Sections 5(a) and 5(b) hereof have
been fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in their
opinion, (A) the Registration
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Statement, as of its effective date, did not contain any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, (B) the Prospectus
does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and (C) since the effective date of the
Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(i) (i) None of the Transaction Entities or their subsidiaries
or any Property shall have sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and there shall not have been any
change in the capital stock or long-term debt of either Transaction
Entity or any of their subsidiaries or any change, or any
development involving a prospective change, in or affecting any
Property Affiliate or Property or the general affairs, management,
financial position, shareholders' equity or results of operations of
either Transaction Entity, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in the judgment
of the Agents, materially impairs the investment quality of the
Notes; (ii) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any exchange
or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (iii)
a banking moratorium shall have been declared by Federal or state
authorities, (iv) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (v) there
shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United
States shall be such), as to make it, in the judgment of a majority
in interest of the several Agents, impracticable or inadvisable to
proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Operating Partnership as principal
pursuant to the applicable Purchase Agreement, as the case may be.
(j) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Operating Partnership's debt securities by any "nationally
recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have
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publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Operating
Partnership's debt securities.
(k) The Transaction Entities shall not have failed at or prior
to the Closing Date to have performed or complied with any of their
agreements herein contained and required to be performed or complied
with by them hereunder at or prior to the Closing Date.
(l) On the Closing Date, counsel for the Agents shall have
been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale
of the Notes as herein contemplated and related proceedings, 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 Transaction Entities in
connection with the issuance and sale of the Notes as herein
contemplated shall be satisfactory in form and substance to the
Agents and counsel for the Agents.
(m) Prior to the Closing Date the Operating Partnership shall
have furnished or caused to be furnished to the Agents such further
certificates and documents as the Agents shall have reasonably
requested.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Agents.
Any certificate or document signed by any officer of the Transaction
Entities and delivered to the Agents, or to counsel for the Agents, shall be
deemed a representation and warranty by the Transaction Entities to each Agent
as to the statements made therein.
6. Additional Agreements of the Transaction Entities. Each of the
Transaction Entities jointly and severally agrees:
(a) Each acceptance by the Operating Partnership of an offer
for the purchase of Notes shall be deemed to be an affirmation that
the representations and warranties of the Transaction Entities
contained in this Agreement and in any certificate theretofore given
to the Agents pursuant hereto are true and correct in all material
respects at the time of such acceptance, and an undertaking that
such representations and warranties will be true and correct in all
material respects at the time of delivery to the purchaser or his
agent of the Notes relating to such acceptance as though made at and
as of each such time (and such representations and warranties shall
relate to the Registration Statement and the Prospectus as amended
or supplemented to each such time).
(b) The Operating Partnership agrees that during each
Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely
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for the interest rates or maturities of the Notes or the principal
amount of Notes remaining to be sold or similar changes), each time
the Operating Partnership sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of an
officers' certificate under this Section 6(b) as a condition to the
purchase of Notes pursuant to such Purchase Agreement or the
Operating Partnership files with the Commission any document
incorporated by reference into any Prospectus, the Operating
Partnership shall submit to the Agents a certificate, (i) as of the
date of such amendment, supplement, Time of Delivery relating to
such sale or filing or (ii) if such amendment, supplement or filing
was not filed during a Marketing Period, as of the first day of the
next succeeding Marketing Period, representing that the statements
contained in the certificate referred to in Section 5(h) hereof
which was last furnished to the Agents are true and correct in all
material respects at the time of such amendment, supplement or
filing, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the
Registration Statement and each Prospectus as amended and
supplemented to such time).
(c) The Operating Partnership agrees that during each
Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of
the Notes or the principal amount of Notes remaining to be sold or
similar changes), each time the Operating Partnership sells Notes to
an Agent as principal and the applicable Purchase Agreement
specifies the delivery of a legal opinion under this Section 6(c) as
a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Operating Partnership files with the Commission any
document incorporated by reference into any Prospectus, the
Operating Partnership shall, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii)
if such amendment, supplement or filing was not filed during a
Marketing Period, on the first day of the next succeeding Marketing
Period, furnish the Agents and their counsel with the written
opinions of Wolf, Block, Schorr and Solis-Cohen LLP and of Weinberg
& Green LLC, each addressed to the Agents and dated the date of
delivery of such opinion, in form satisfactory to the Agents, of the
same effect as the opinions referred to in Section 5(e) hereof, but
modified, as necessary, to relate to the Registration Statement and
each Prospectus as amended or supplemented to the time of delivery
of such opinion; provided, however, that in lieu of such opinions,
each such counsel may furnish the Agents with a letter to the effect
that the Agents may rely on the applicable prior opinion to the same
extent as though it was dated the date of such letter authorizing
reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and each Prospectus
as amended or supplemented to the time of delivery of such letter
authorizing reliance).
(d) The Operating Partnership agrees that during each
Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional
financial information, each time
38
<PAGE> 39
the Operating Partnership sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of a letter
under this Section 6(d) as a condition to the purchase of Notes
pursuant to such Purchase Agreement or the Operating Partnership
files with the Commission any document incorporated by reference
into any Prospectus which contains additional financial information,
the Operating Partnership shall cause Ernst & Young LLP (or other
independent accounts of the Operating Partnership acceptable to the
Agents to furnish the Agents, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii)
if such amendment, supplement, or filing was not filed during a
Marketing Period, on the first day of the next succeeding Marketing
Period, a letter, addressed jointly to the Operating Partnership and
the Agents and dated the date of delivery of such letter, in form
and substance reasonably satisfactory to the Agents, of the same
effect as the letter referred to in Section 5(g) hereof but modified
to relate to the Registration Statement and each Prospectus, as
amended and supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records
of the Operating Partnership; provided, however, that if the
Registration Statement or any Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal
quarter, such accountants may limit the scope of such letter to the
unaudited financial statements included in such amendment or
supplement unless there is contained therein any other accounting,
financial or statistical information that, in the reasonable
judgment of the Agents, should be covered by such letter, in which
event such letter shall also cover such other information.
(e) On any settlement date for the sale of Notes, the
Operating Partnership shall, if requested by the Agent that
solicited or received the offer to purchase any Notes being
delivered on such settlement date, furnish such Agent with the
written opinions of Wolf, Block, Schorr and Solis Cohen LLP and
Weinberg & Green LLC, each dated such settlement date, in form
satisfactory to such Agent, to the effect set forth in section 5(e)
hereof, but modified, as necessary, to relate to the Prospectus
relating to the Notes to be delivered on such settlement date;
provided, however, that in lieu of such opinions, each such counsel
may furnish the Agents with letters to the effect that the Agents
may rely on the applicable prior opinion to the same extent as
though it was dated such settlement date (except that statements in
such prior opinion shall be deemed to relate to the Registration
Statement and such Prospectus as amended or supplemented to the time
of delivery of such letter authorizing reliance).
7. Indemnification and Contribution.
(a) The Transaction Entities, jointly and severally, shall
indemnify and hold harmless each Agent, its officers and employees
and each person, if any, who controls any Agent within the meaning
of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability
or action relating
39
<PAGE> 40
to solicitations of offers to purchase and purchases of Notes from
the Operating Partnership by an Agent as Principal), to which such
Agent, officer, employee or controlling person may become subject,
under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained (A) the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (B) in any
blue sky application or other document prepared or executed by the
Operating Partnership (or based upon any written information
furnished by the Operating Partnership) specifically for the purpose
of qualifying any or all of the Notes under the securities laws of
any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii)
the omission or alleged omission to state in the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required
to be stated therein or necessary to make the statements therein not
misleading (with respect to the Prospectus, in light of the
circumstances under which they were made), and shall reimburse each
Agent, officer, employee or controlling person for any legal and
other expenses reasonably incurred by such Agent, officer, employee
or controlling person in investigating or defending or preparing to
defend against such loss, claim, damage, liability or action;
provided, however, that the Transaction Entities shall not be liable
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application, in
reliance upon and in conformity with written information furnished
to the Transaction Entities through the Agents by or on behalf of
any Agent specifically for inclusion therein; provided further, that
as to any prospectus included in the Registration Statement before
it became effective under the Securities Act (a "Preliminary
Prospectus") this indemnity agreement shall not inure to the benefit
of any Agent on account of any loss, claim, damage, liability or
action arising from the sale of Notes to any person by that Agent if
that Agent failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time
required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected
in the Prospectus, unless such failure resulted from non-compliance
by the Operating Partnership with Section 3(b). The foregoing
indemnity agreement is in addition to any liability which the
Transaction Entities may otherwise have to any Agent or to any
officer, employee or controlling person of that Agent.
(b) Each Agent, severally and not jointly, shall indemnify and
hold harmless each Transaction Entity, each of its directors, its
officers who signed the Registration Statement and each person, if
any, who controls each Transaction Entity within the meaning of the
Securities Act, from and against any loss, claim,
40
<PAGE> 41
damage or liability, joint or several, or any action in respect
thereof, to which each Transaction Entity or any such director,
officer or controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material
fact contained (A) in the Registration Statement or the Prospectus
or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Transaction Entities through the Agents
by or on behalf of that Agent specifically for inclusion therein,
and shall reimburse each Transaction Entity and any such director,
officer or controlling person for any legal or other expenses
reasonably incurred by each Transaction Entity or any such director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in
addition to any liability which any Agent may otherwise have to each
Transaction Entity or any such director, officer, or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent it has been
materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Section 7. If any such claim or action
shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall
have the right to employ counsel to represent jointly the Agents and
their respective officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Agents against the Transaction
Entities under this Section 7 if,
41
<PAGE> 42
in the reasonable judgment of the Agents, it is advisable for the
Agents and those officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the
Transaction Entities. No indemnifying party shall be liable for any
settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, the indemnifying party agrees that is shall
be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to an indemnified party under
Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by
the Transaction Entities on the one hand and the Agents on the other
from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Transaction Entities on the one hand and the Agents on the
other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative
benefits received by the Transaction Entities on the one hand and
the Agents on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from
the offering of the (before deducting expenses) received by the
Transaction Entities bears to the total commissions received by the
Agents with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Transaction Entities or the Agents, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Transaction
42
<PAGE> 43
Entities and the Agents agree that it would not be just and
equitable if contributions pursuant to this Section were to be
determined by pro rata allocation (even if the Agents were treated
as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section shall be
deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Agent shall
be required to contribute any amount in excess of the amount by
which the total price at which the Notes sold through such Agent and
distributed to the public were offered to the public exceeds the
amount of any damages which such Agent has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
8. Status of Each Agent. In soliciting offers to purchase the Notes
from the Operating Partnership pursuant to this Agreement (other than in respect
of any Purchase Agreement), each Agent is acting individually and not jointly
and is acting solely as agent for the Operating Partnership and not as
principal. Each Agent will make reasonable efforts to assist the Operating
Partnership in obtaining performance by each purchaser whose offer to purchase
Notes from the Operating Partnership has been solicited by such Agent and
accepted by the Operating Partnership but such Agent shall have no liability to
the Operating Partnership in the event any such purchase is not consummated for
any reason. If the Operating Partnership shall default in its obligations to
deliver Notes to a purchaser whose offer it has accepted, the Operating
Partnership shall (i) hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Operating Partnership and
(ii), in particular, pay to the Agents any commission to which they would be
entitled in connection with such sale.
9. Termination. This Agreement may be terminated for any reason with
respect to any party hereto, at any time, by any party hereto upon the giving of
one day's written notice of such termination to the other parties hereto;
provided, however, if such terminating party is an Agent, such termination shall
be effective only with respect to such terminating party. If, at the time of a
termination, an offer to purchase any of the Notes has been accepted by the
Operating Partnership but the time of delivery to the purchaser has not
occurred, the provisions of this Agreement shall remain in effect until such
Notes are delivered. The provisions of Sections 2(c), 3(f), 3(j), 3(k), 4, 7, 8
and 12 hereof shall survive any termination of this Agreement.
10. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
43
<PAGE> 44
(a) if to the Agents, shall be delivered or sent by mail,
telex or facsimile transmission to: Lehman Brothers Inc., Three
World Financial Center, New York, New York 10285, Attention: Medium
Term Note Department, 9th Floor; Telephone No. (212) 640-8400; Fax
No.: (212) 528-7035, with a copy, in the case of any notice pursuant
to Section 7(c), to the Director of Litigation, Office of the
General Counsel, Lehman Brothers Inc., 3 World Financial Center,
10th Floor, New York, NY 10285; Donaldson, Lufkin & Jenrette
Securities Corporation, Corporate Syndicate, 277 Park Avenue, Ninth
Floor, New York, New York, 10172 telephone: (212) 892-4807, fax
number:(212) 892-2682; First Chicago Capital Markets, Inc., One
First National Plaza, Suite 0307, Chicago, Illinois 60670,
Attention: Operations Manager, Medium Term Notes/Cherie McNight,
(312) 732-9633, telecopier: (312) 732-7966; J.P. Morgan Securities
Inc., 60 Wall Street, 3d Floor, New York, New York 10260,
Attention: MTN Trading Desk, (212) 648-0591, telecopier:
(212) 648-5909; UBS Securities LLC, 299 Park Avenue, 26th Floor, New
York, New York 10171, Attention: Richard Messina, (212) 821-4542,
telecopier: (212) 821-3667;
(b) if to the Transaction Entities, shall be delivered or sent
by mail, telex or facsimile transmission to the Company, 65 Valley
Stream Parkway, Malvern, PA 19355, Attention: General Counsel (Fax:
610-644-2175);
provided, however, that any notice to an Agent pursuant to Section 7(c) shall be
delivered or sent by mail, telex or facsimile transmission to such Agent at its
address set forth in its acceptance telex to the Agents, which address will be
supplied to any other party hereto by the Agents upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Transaction Entities shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the Agents
by Lehman Brothers Inc.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Agents, the Transaction Entities
and their respective personal representatives and successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Transaction Entities contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any Agent within
the meaning of Section 15 of the Securities Act and (B) the indemnity agreement
of the Agents contained in Section 7 of this Agreement shall be deemed to be for
the benefit of trustees of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Transaction Entities
within the meaning of section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 11, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
12. Survival. The respective indemnities, representations,
warranties and agreements of the Transaction Entities and the Agents contained
in this Agreement or made by or on behalf on them, respectively, pursuant to
this Agreement, shall survive each delivery of and payment for any of the Notes
and shall remain in full force and effect, regardless of any
44
<PAGE> 45
investigation made by or on behalf of any of them or any person controlling any
of them, and shall survive each delivery of and payment for any of the Notes.
13. Sales Of Notes Denominated In A Foreign Currency And Indexed
Notes. If at any time the Operating Partnership and any of the Agents shall
determine to issue and sell Notes denominated in a currency or currency unit
other than U.S. Dollars, which other currency may include a composite currency,
or with respect to which an index is used to determine the amounts of payments
of principal and any premium or interest, the Company and any such Agent shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Exhibit D.
Such amendment shall establish, as appropriate additions and modifications that
shall apply to the sales, whether offered on an agency or principal basis, of
the Notes covered thereby. The Agents are authorized to solicit offers to
purchase Notes with respect to which an index is used to determine the amounts
of payments of principal and any premium and interest, and the Company shall
agree to any sales of such Notes (whether offered on an agency or principal
basis), only in a minimum aggregate amount of $2,500,000.
14. Definition of the Term "subsidiary". For purposes of this
Agreement, "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
45
<PAGE> 46
If the foregoing correctly sets forth the agreement between the
Company and the Agents, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
LIBERTY PROPERTY TRUST
By /s/ Willard G Rouse III
-------------------------------------------
Name: Willard G. Rouse III
Title: Chairman of the Board and Chief
Executive Officer
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, its sole general partner
By /s/ Willard G. Rouse III
-------------------------------------------
Name: Willard G. Rouse III
Title:Chairman of the Board and
Chief Executive Officer
Confirmed and Accepted, as of the date first above written:
LEHMAN BROTHERS INC.
By: /s/ Bart McDade
- ----------------------------------------
Authorized Representative
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By: /s/ Roger Thompson
- ----------------------------------------
Name: Roger Thompson
Title: Senior Vice President
<PAGE> 47
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Evonne W. Taylor
Name: Evonne W. Taylor
Title: Vice President
J.P. MORGAN SECURITIES INC.
By: /s/ Keysha Bailey
Name: Keysha Bailey
Title: Vice President
UBS SECURITIES LLC
By: /s/ Richard Messina
Name: Richard Messina
Title: Director
<PAGE> 48
SCHEDULE A
LIBERTY PROPERTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTES, SERIES A
SCHEDULE OF PAYMENTS
The Operating Partnership agrees to pay each Agent a commission equal to
the following percentage of the aggregate U.S. dollar equivalent of the
principal amount of Notes:
<TABLE>
<CAPTION>
=========================================================
TERM COMMISSION RATE
- ---------------------------------------------------------
<S> <C>
9 months to less than 12 months 0.125%
- ---------------------------------------------------------
12 months to less than 18 months 0.150%
- ---------------------------------------------------------
18 months to less than 2 years 0.200%
- ---------------------------------------------------------
2 years to less than 3 years 0.250%
- ---------------------------------------------------------
3 years to less than 4 yearS 0.350%
- ---------------------------------------------------------
4 years to less than 5 years 0.450%
- ---------------------------------------------------------
5 years to less than 6 years 0.500%
- ---------------------------------------------------------
6 years to less than 7 years 0.550%
- ---------------------------------------------------------
7 years to less than 10 years 0.600%
- ---------------------------------------------------------
10 years to less than 15 years 0.625%
- ---------------------------------------------------------
15 years to less than 20 years 0.650%
- ---------------------------------------------------------
20 years to 30 years 0.750%
- ---------------------------------------------------------
More than 30 years to be negotiated
at time of sale
=========================================================
</TABLE>
<PAGE> 49
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Operating Partnership in connection with each sale of Notes:
Principal Amount: $____________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
/ / LIBOR Reuters
Page:
/ / LIBOR Telerate
Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
<PAGE> 50
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Closing Date and Time:
Additional/Other Terms:
A-2
<PAGE> 51
EXHIBIT B
LIBERTY PROPERTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
Medium-Term Notes Due Nine Months or More from Date of Issuance, Series A
(the "Notes") are to be offered on a continuing basis by Liberty Property
Limited Partnership (the "Operating Partnership"). Lehman Brothers Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation, First Chicago Capital
Markets, Inc., J.P. Morgan Securities Inc. and UBS Securities LLC, as agents
(each, an "Agent" and collectively, the "Agents"), have each agreed to use their
reasonable best efforts to solicit offers to purchase the Notes. The Notes are
being sold pursuant to a Distribution Agreement between the Operating
Partnership, Liberty Property Trust, a Maryland real estate investment trust,
its General Partner, and the Agents dated October 24, 1997 (as it may be
supplemented or amended from time to time, the "Distribution Agreement") to
which these administrative procedures are attached as an exhibit. The Notes will
be issued under an indenture dated October 24, 1997 between the Operating
Partnership and The First National Bank of Chicago, as trustee (the "Trustee"),
as heretofore supplemented. The Notes will rank equally with all other unsecured
and unsubordinated indebtedness of the Operating Partnership and will have been
registered with the Securities and Exchange Commission (the "Commission"). Terms
defined in the Prospectus relating to the Notes (the "Prospectus") and in the
Distribution Agreement shall have the same meaning when used in this exhibit.
Special administrative procedures for Multi-Currency Notes and for Global
Securities relating to Book-Entry Notes follow these administrative procedures.
Administrative responsibilities, document control and record-keeping
functions to be performed by the Operating Partnership will be performed by its
Chief Financial Officer. Administrative procedures for the offering are
explained below.
PRICE TO PUBLIC
Each Note will be issued at 100% of principal amount, unless otherwise
determined by the Operating Partnership.
DATE OF ISSUANCE
Each Note will be dated and issued as of the date of its authentication by
the Trustee.
MATURITIES
Each Note will mature on a Business Day (as defined below) selected by the
purchaser and agreed upon by the Operating Partnership, such date being at least
nine months from the date
<PAGE> 52
of issuance. Each Floating Rate Note will mature on an Interest Payment Date (as
defined below).
"Business Day" shall mean any day which is not a Saturday or Sunday and
which is not a day on which banking institutions are generally authorized or
required by law to close in the City of New York.
REGISTRATION
Notes will be issued only in fully registered form as either a Book-Entry
Note or a Certificated Note. Certificated Notes may be presented for
registration of transfer or exchange at the Trustee's New York office.
DENOMINATIONS
The Notes (other than Notes represented by Global Securities) will be
issued and payable in U.S. dollars in the denomination of $100,000 and any
larger denomination which is an integral multiple of $1,000.
INTEREST PAYMENTS
Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will bear
interest from its issue date at the annual rate stated on the face thereof,
payable on _____________ and ______________ of each year (each an "Interest
Payment Date" with respect to such Fixed Rate Note) and at Stated Maturity or
upon redemption, if applicable.
Special provisions are set forth in the Prospectus relating to Notes
bearing interest at a rate or rates determined by reference to an interest rate
formula ("Floating Rate Notes") at a rate determined pursuant to the formula
stated on the face thereof, payable in arrears on such dates as are specified
therein (each an "Interest Payment Date" with respect to such Floating Rate
Note).
Interest on Fixed Rate Notes will be calculated and paid on the basis of a
360-day year of twelve 30-day months. Interest will be payable to the person in
whose name such Note is registered at the close of business on the fifteenth day
(whether or not a Business Day) next preceding an Interest Payment Date with
respect to Floating Rate Notes (the "Record Dates") next preceding the
respective Interest Payment Date; provided, however, that interest payable at
Stated Maturity will be payable to the person to whom principal shall be
payable. Any payment of principal and interest on such Note required to be paid
on an Interest Payment Date or at Stated Maturity or upon redemption, if
applicable, which is not a Business Day shall be postponed to the next day which
is a Business Day. The first payment of interest on any Note originally issued
between a Record Date and an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Record Date. All interest payments,
excluding interest payments made at Stated Maturity or upon redemption, if
applicable, will be made by check mailed to the person entitled thereto as
provided above, or, at the option of the Operating Partnership, by wire transfer
to an account maintained by such person with a bank located in the
B-2
<PAGE> 53
United States. Notwithstanding the foregoing, the holder of $1 million or more
in aggregate principal amount of Notes with the same Interest Payment Date may
request payment by wire transfers.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Operating Partnership with the total amount
of the interest payments to be made on such Interest Payment Date. The Trustee
(or any duly selected paying agent) will provide monthly to the Operating
Partnership's Treasury Department a list of the principal and interest to be
paid on Notes maturing in the next succeeding month. The Operating Partnership
will provide to the Trustee not later than the payment date sufficient moneys to
pay in full all principal and interest payments due on such payment date. The
Trustee will assume responsibility for withholding taxes on interest paid as
required by law.
ACCEPTANCE AND REJECTION OF OFFERS
The Operating Partnership shall have the sole right to accept offers to
purchase Notes and may reject any such offer in whole or in part. Each Agent
shall promptly communicate to the Operating Partnership, orally or in writing,
each reasonable offer to purchase Notes from the Operating Partnership received
by it other than those rejected by such Agent. Each Agent shall have the right,
in its discretion reasonably exercised without advising the Operating
Partnership, to reject any offers in whole or in part.
SETTLEMENT
The receipt of immediately available funds in U.S. Dollars by the
Operating Partnership in payment for a Note (less the applicable commission) and
the authentication and issuance of such Note shall, with respect to such Note,
constitute "Settlement." All offers accepted by the Operating Partnership will
be settled from one to five Business Days from the date of acceptance by the
Operating Partnership pursuant to the timetable for Settlement set forth below
unless the Operating Partnership and the purchaser agree to Settlement on a
later date; provided, however, that the Operating Partnership will so notify the
Trustee of any such later date on or before the Business Day immediately prior
to the Settlement date.
SETTLEMENT PROCEDURES
In the event of a purchase of Notes by an Agent, as principal, appropriate
Settlement details will be set forth in the applicable Purchase Agreement to be
entered into between such Agent and the Operating Partnership pursuant to the
Distribution Agreement. In the event of the sale of a Multi-Currency Note or an
Indexed Note, additional or different Settlement details may be set forth in the
applicable Amendment to be entered into between the Agent and the Operating
Partnership pursuant to the Distribution Agreement.
Settlement procedures with regard to each Note sold through each Agent
shall be as follows:
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<PAGE> 54
A. Such Agent (the "Presenting Agent") will advise the Operating
Partnership by telephone, telex or facsimile, of the following Settlement
information:
1. Exact name in which the Note is to be registered ("Registered
Owner").
2. Exact address of the Registered Owner and address for payment
of principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. Interest rate:
(a) Fixed Rate Notes:
(i) interest rate
(ii) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) interest rate reset periods
(v) interest payment dates
(vi) index maturity
(vii) maximum and minimum interest rates, if any
(viii) record dates
(ix) interest determination dates
(x) overdue rate, if any
10. The date on or after which the Notes are redeemable at the option of
the Operating Partnership, and additional redemption or repurchase
provisions, if any.
11. Wire transfer information.
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<PAGE> 55
12. Presenting Agent's Commission (to be paid in the form of a discount
from the proceeds remitted to the Operating Partnership upon
Settlement).
B. The Operating Partnership will confirm the above Settlement information
to the Trustee by telephone, telex or facsimile, and the Trustee will assign a
Note number to the transaction. If the Operating Partnership rejects an offer,
the Operating Partnership will promptly notify the Presenting Agent and the
Trustee by telephone.
C. The Trustee will complete the first page of the preprinted 4-ply Note
packet [Note: Such a packet need not be prepared if the Operating Partnership is
utilizing the book-entry system, see procedures below, the form of which was
previously approved by the Operating Partnership, the Agents and the Trustee.]
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. The Presenting Agent
will acknowledge receipt of the Note by completing the yellow stub and returning
it to the Trustee.
E. The Presenting Agent will cause to be wire transferred to a bank
account designated by the Operating Partnership immediately available funds in
U.S. dollars in the amount of the principal amount of the Note, less the
applicable commission or discount, if any.
F. The Presenting Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately available funds in
the amount of the principal amount of the Note. The Presenting Agent will
deliver to the purchaser a copy of the most recent Prospectus applicable to the
Note with or prior to any written offer of Notes, delivery of the Note and the
confirmation and payment by the purchaser for the Note.
G. The Presenting Agent will obtain the acknowledgement of receipt for the
Note and Prospectus by the purchaser through the purchaser's completion of the
blue stub.
H. The Trustee will mail the pink stub to the Operating Partnership's
Treasurer.
SETTLEMENT PROCEDURES TIMETABLE
For offers accepted by the Operating Partnership, Settlement procedures
"A" through "H" set forth above shall be completed on or before the respective
times set forth below:
B-5
<PAGE> 56
<TABLE>
<CAPTION>
=========================================================
SETTLEMENT
PROCEDURE TIME (NEW YORK)
=========================================================
<S> <C>
A 5 PM on date of order
- ---------------------------------------------------------
B 3 PM on the Business Day prior to
Settlement Date
- ---------------------------------------------------------
C-D 12 Noon on the Settlement Date
- ---------------------------------------------------------
E 2:15 PM on the Settlement date
- ---------------------------------------------------------
F-G 3 PM on the Settlement Date
- ---------------------------------------------------------
H 5 PM on Business Day after the
Settlement Date
=========================================================
</TABLE>
FAILS
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Operating
Partnership for Settlement, the Presenting Agent will immediately notify the
Trustee and the Operating Partnership's Treasurer by telephone, confirmed in
writing, of such failure and return the Note to the Trustee. Upon the Trustee's
receipt of the Note from the Presenting Agent, the Operating Partnership will
promptly return to the Presenting Agent an amount of immediately available funds
in U.S. dollars equal to any amount previously transferred to the Operating
Partnership in respect of the Note pursuant to advances made by the Agent. Such
returns will be made on the Settlement date, if possible, and in any event not
later than 12 noon (New York City time) on the Business Day following the
Settlement date. The Operating Partnership will reimburse the Presenting Agent
on an equitable basis for its loss of the use of the funds during the period
when the funds were credited to the account of the Operating Partnership. Upon
receipt of the Note in respect of which the default occurred, the Trustee will
mark the Note "cancelled," make appropriate entries in its records and deliver
the Note to the Operating Partnership with an appropriate debit advice. The
Presenting Agent will not be entitled to any commission with respect to any Note
which the purchaser does not accept or make payment for.
PRICING REDEMPTION
Except as otherwise specified in the applicable Pricing Supplement and on
the Notes, the Notes will not be redeemable prior to their Stated Maturity. If
so specified in a Pricing Supplement and on the Note, such Note will be subject
to redemption by the Operating Partnership, at any time on or after the date set
forth on such supplement and the Note, in whole or from time to time in part, at
the option of the Operating Partnership, at the redemption price set forth
therein, together with interest accrued thereon on the date of redemption.
Notice of redemption shall be given by first-class mail postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the date of
redemption, to each holder of Notes to
B-6
<PAGE> 57
be redeemed, in the manner and in accordance with the Indenture. In the event of
redemption in part of any Note, a new Note for the amount of the unredeemed
portion shall be issued in the name of the Holder upon cancellation of the
redeemed Note.
MATURITY
Upon presentation of each Note at Maturity the Trustee (or any duly
appointed Paying Agent) will pay the principal amount thereof, together with
accrued interest through the date of redemption. Such payment shall be made in
immediately available funds in U.S. dollars, provided that the Note is presented
to the Trustee (or any such Paying Agent) in time for the Trustee (or such
Paying Agent) to make payments in such funds in accordance with its normal
procedures. The Operating Partnership will provide the Trustee (and any such
Paying Agent) with funds available for immediate use for such purpose. Notes
presented at Maturity will be cancelled by the Trustee as provided in the
Indenture.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
The Operating Partnership and the Agents will discuss from time to time
the rates to be borne by the Notes that may be sold as a result of the
solicitation of offers by the Agents. Once any Agent has recorded any indication
of interest in Notes upon certain terms, and communicated with the Operating
Partnership, if the Operating Partnership accepts an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement in the form previously
approved by the Agents, reflecting the terms of such Notes and, after approval
from the Presenting Agent, will arrange to have 10 copies of such Pricing
Supplement (together with the Prospectus, if amended or supplemented) filed with
the Commission and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, together with such Pricing
Supplement, to the Presenting Agent. See "Delivery of Prospectus." No
settlements with respect to Notes upon such terms may occur prior to such filing
and the Presenting Agent will not, prior to such filing, mail confirmations to
customers who have offered to purchase Notes upon such terms. After such filing,
sales, mailing of confirmations and settlements may occur with respect to Notes
upon such terms, subject to the provisions of "Delivery of Prospectus" below.
If the Operating Partnership decides to post rates and a decision has been
reached to change interest rates, the Operating Partnership will promptly notify
each Agent. Each Agent will forthwith suspend solicitation of purchases. At that
time, the Agents will recommend and the Operating Partnership will establish
rates to be so "posted." Following establishment of posted rates and prior to
the filing described in the following sentence, the Agents may only record
indications of interest in purchasing Notes at the posted rates. Once any Agent
has recorded any indication of interest in Notes at the posted rates and
communicated with the Operating Partnership, if the Operating Partnership plans
to accept an offer at the posted rate, it will prepare a Pricing Supplement
reflecting such posted rates and, after approval from the Presenting Agent, will
arrange to have 10 copies of such Pricing Supplement (together with the
Prospectus if amended or supplemented) filed with the Commission and will supply
an appropriate number of copies of the Prospectus, as then amended or
supplemented, to the Presenting Agent. See "Delivery of Prospectus." No
settlements at the posted rates may occur prior to such filing and the
Presenting Agent will not, prior to such filing, mail confirmations to
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<PAGE> 58
customers who have offered to purchase Notes at the posted rates. After such
filing, sales, mailing of confirmations and settlements may resume, subject to
the provisions of "Delivery of Prospectus" below.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
In the event that at the time the Agents, at the direction of the
Operating Partnership, suspends solicitation of offers to purchase from the
Operating Partnership there shall be any orders outstanding which have not been
settled, the Operating Partnership will promptly advise the Agents and the
Trustee whether such orders may be settled and whether copies of the Prospectus
as theretofore amended and/or supplemented as in effect at the time of the
suspension may be delivered in connection with the settlement of such orders.
The Operating Partnership will have the sole responsibility for such decision
and for any arrangements which may be made in the event that the Operating
Partnership determines that such orders may not be settled or that copies of
such Prospectus may not be so delivered.
DELIVERY OF PROSPECTUS
A copy of the Prospectus as most recently amended or supplemented on the
date of delivery thereof, together with the applicable Pricing Supplement, must
be delivered to a purchaser prior to or together with the earlier of the
delivery of (i) the written confirmation of a sale sent to a purchaser or his
agent and (ii) any Note purchased by such purchaser. The Operating Partnership
shall ensure that the Presenting Agent receives copies of the Prospectus and
each amendment or supplement thereto (including the applicable Pricing
Supplement) in such quantities and within such time limits as will enable the
Presenting Agent to deliver such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance with the preceding sentence.
Copies of Pricing Supplements should be delivered to the applicable address: if
to Lehman Brothers Inc., to c/o ADP, Prospectus Services, 536 Broad Hollow Road,
Melville, New York 11747, Attention: Mike Ward, (516) 254-7106, telecopier:
(516) 249-7942 and by hand to Lehman Brothers Inc., 3 World Financial Center,
9th floor, New York, New York 10285, Attention: Brunnie Vazquez, (212) 526-8400;
if to Donaldson, Lufkin & Jenrette Securities Corporation, to: Corporate
Syndicate, 277 Park Avenue, Ninth Floor, New York, New York, 10172. telephone:
(212) 892-4807, fax number: (212) 892-2682; if to First Chicago Capital
Markets, Inc., to: First Chicago Capital Markets, Inc., One First National
Plaza, Suite 0307, Chicago, Illinois 60670, Attention: Operations Manager,
Medium Term Notes/ Cherie McNight, (312) 732-9633, telecopier: (312) 732-7966;
if to J.P. Morgan Securities Inc., to: J.P. Morgan Securities Inc., 60 Wall
Street, 3d Floor, New York, New York 10260, Attention: MTN Trading Desk,
(212) 648-0591, telecopier: (212) 648-5909; if to UBS Securities LLC, to:
UBS Securities LLC, 299 Park Avenue, 26th Floor, New York, New York 10171,
Attention: Richard Messina, (212) 821-4542, telecopier: (212)
821-3667; with a copy to Rogers & Wells, 200 Park Avenue, New York, New York
10166, Attention: Robert E. King, Jr., Esq. If, since the date of acceptance of
a purchaser's offer, the Prospectus shall have been supplemented solely to
reflect any sale of Notes on terms different from those agreed to between the
Operating Partnership and such purchaser or a change in posted rates not
applicable to such purchaser, such purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall receive the Prospectus as
supplemented to reflect the terms of the Notes being purchased by such purchaser
and otherwise
B-8
<PAGE> 59
as most recently amended or supplemented on the date of delivery of the
Prospectus. The Trustee will make all such deliveries with respect to all Notes
sold directly by the Operating Partnership.
AUTHENTICITY OF SIGNATURES
The Operating Partnership will cause the Trustee to furnish the Agents
from time to time with the specimen signatures of each of the Trustee's
officers, employees and agents who have been authorized by the Trustee to
authenticate Notes, but the Agents will have no obligation or liability to the
Operating Partnership or the Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the Operating Partnership or the
Trustee on any Note.
ADVERTISING COSTS
The Operating Partnership will determine with the Agents the amount and
nature of advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the Operating Partnership will be paid by
the Operating Partnership.
B-9
<PAGE> 60
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency Amendment,
the following procedures and terms shall apply to Multi-Currency Notes in
addition to, and to the extent inconsistent therewith in replacement of, the
procedures and terms set forth above.
DENOMINATIONS
The authorized denominations for Multi-Currency Notes will be set forth in
the applicable Pricing Supplement.
CURRENCIES
Unless otherwise specified in the applicable Pricing Supplement,
purchasers of Multi Currency Notes are required to pay for such Multi-Currency
Notes in the Specified Currency in immediately available funds. If requested by
the purchaser of the Multi-Currency Note on or prior to the fifth Business Day
preceding the date of delivery of the Multi-Currency Notes (or by such other day
as the Presenting Agent shall determine), the Presenting Agent will arrange the
conversion of U.S. dollars into such Specified Currency to enable the purchaser
to pay for the Multi-Currency Notes. Each such conversion will be made by the
Presenting Agent on such terms and subject to such conditions, limitations and
charges as such Presenting Agent may from time to time establish in accordance
with its regular foreign exchange practices. All costs of exchange will be borne
by the purchasers of the Multi-Currency Notes.
PAYMENT OF PRINCIPAL AND INTEREST
The principal of, premium, if any, and interest on Multi-Currency Notes
will be payable in the Specified Currency. Unless otherwise indicated in the
applicable Pricing Supplement, the agent appointed by the Operating Partnership
(the "Exchange Rate Agent") will convert all such payments of principal,
premium, if any, and interest to U.S. dollars. However, unless otherwise
indicated in the applicable Pricing Supplement, the holder of a Multi-Currency
Note may elect to receive such payments in the Specified Currency as described
below.
Any U.S. dollar amount to be received by a holder of a Multi-Currency Note
will be based on the highest bid quotation in The City of New York received by
the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) for the
purchase by the quoting dealer of the Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all holders of Notes scheduled to receive U.S. dollar
payments and at which the applicable dealer commits to execute a contract. If
such bid quotations are not available, payments will be made in the Specified
Currency. All currency
B-10
<PAGE> 61
exchange costs will be borne by the holder of the Multi-Currency Note by
deductions from such payments.
A holder of a Multi-Currency Note may, unless otherwise specified in the
applicable Pricing Supplement, elect to receive payment of the principal of,
premium, if any, and interest on such Multi-Currency Notes in the Specified
Currency, by transmitting a written request for such payment by mail, hand
delivered, or by cable, telex or other form of facsimile transmission to the
principal office of the Trustee (acting as the Operating Partnership's paying
agent in The City of New York) on or prior to the Record Date or at least
sixteen days prior to Maturity, as the case may be, such election to remain in
effect until revoked by written notice to the Trustee received by the Trustee on
or prior to the Record Date or at least sixteen days prior to Maturity, as the
case may be. A holder of a Multi-Currency Note may elect to receive payment in
the Specified Currency for all principal, premium, if any, and interest payments
and need not file a separate election for each payment.
Interest on Multi-Currency Notes paid in U.S. dollars will be paid in the
manner specified in the applicable Pricing Supplement. Unless otherwise
specified in the applicable Pricing Supplement, interest on Multi-Currency Notes
paid in the Specified Currency will be paid by wire transfer to a bank account
maintained by the holder in the country of the Specified Currency. The principal
of Multi-Currency Notes, together with interest accrued and unpaid therein, due
at Maturity will be paid in immediately available funds against presentation of
such Multi-Currency Notes at the principal office of the Trustee, provided that
principal, premium, if any, and interest payable at Maturity in a Specified
Currency will be paid by wire transfer to such bank account. Any payment of
principal or interest required to be made on an Interest Payment Date or at
Maturity of a Multi-Currency Note which is not a Business Day need not be made
on such day, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Maturity, as the
case may be, and no interest shall accrue from the period from and after such
Interest Payment Date or Maturity.
PAYMENT OF PRINCIPAL AND INTEREST
If a Specified Currency is not available for payment of principal or
interest with respect to a Multi-Currency Note due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the Operating
Partnership, the Operating Partnership will be entitled to satisfy its
obligations to holders of Multi-Currency Notes by making such payment in U.S.
dollars on the basis of the noon buying rate in The City of New York for cable
transfers of the Specified Currency as certified for customs purposes by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on the second day
prior to such payment, or if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
indicated in the applicable Pricing Supplement. Any payment made under such
circumstances in U.S. dollars where required payment is in a Specified Currency
will not constitute a default under the Indenture.
B-11
<PAGE> 62
OUTSTANDING MULTI-CURRENCY NOTES
For purposes of calculating the principal amount of any Multi-Currency
Note for any purpose under the Indenture, the principal amount of such
Multi-Currency Note at any time Outstanding shall be deemed to be the U.S.
dollar equivalent at the Market Exchange Rate, determined as of the date of the
original issuance of such Multi-Currency Note, of the principal amount of such
Multi-Currency Note.
DETAILS FOR SETTLEMENT OF MULTI-CURRENCY NOTES
In addition to the Settlement information specified in "Settlement
Procedures" above, the Presenting Agent shall communicate to the Operating
Partnership in the manner set forth in "Settlement Procedures" the following
information:
1. Specified Currency
2. Denominations
3. Wire transfer and overseas bank account information (if holder has
elected payment in a Specified Currency).
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<PAGE> 63
SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security delivered to the
Trustee, as agent for the Depository Trust Operating Partnership ("DTC"), and
recorded in the book-entry system maintained by DTC or a certificate delivered
to the Holder thereof or a Person designated by such Holder. An owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
Note. In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Operating Partnership and the Trustee to DTC and a Medium-Term Note
Certificate Agreement previously entered into between the Trustee and DTC, and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"'). Except as otherwise set forth in this Exhibit B,
Book-Entry Notes will be issued in accordance with the administrative procedures
set forth below.
ISSUANCE
On any date of settlement (as defined under "Settlement" below one or more
Fixed Rate Book-Entry Notes, the Operating Partnership will issue a single
Global Security in fully registered form without coupons representing up to
$200,000,000 principal amount of all of such Notes that have the same original
issuance date, interest rate and Stated Maturity. Similarly, on any settlement
date for one or more Floating Rate Book-Entry Notes, the Operating Partnership
will issue a single Global Security representing up to $200,000,000 principal
amount of all of such Notes that have the same interest rate formula, original
issuance date, Initial Interest Rate, Interest Payment Dates, Index Maturity,
Spread, Spread Multiplier, minimum interest rate (if any), maximum interest rate
(if any) and Stated Maturity. Each Global Security will be dated and issued as
of the date of its authentication by the Trustee, as Trustee. Each Global
Security will have an interest accrual date (the "Interest Accrual Date"), which
will be (i) with respect to an original Global Security (or any portion
thereof), its original issuance date and (ii) with respect to any Global
Security (or portion thereof) issued subsequently upon exchange of a Global
Security or in lieu of a destroyed, lost or stolen Global Security, the most
recent Interest Payment Date to which interest has been paid or duly provided
for on the predecessor Global Security or Securities (or if no such payment or
provision has been made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such subsequently issued
Global Security. No Global Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any Certificated Note or (iii) any
Multi-Currency or Indexed Note.
IDENTIFICATION NUMBERS
The Operating Partnership will arrange, on or prior to commencement of a
program for the offering of Book-Entry Notes, with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau") for the reservation
of a series of CUSIP numbers (including tranche numbers), consisting of
approximately 900 CUSIP numbers and relating to Global Securities representing
the Book-Entry Notes. The Trustee has or will obtain from the CUSIP Service
Bureau a written list of such series of reserved CUSIP numbers and will deliver
to the Operating Partnership and DTC such written list of 900 CUSIP numbers of
such series.
B-13
<PAGE> 64
The Operating Partnership will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B." DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the Operating Partnership
has assigned to Global Securities. The Trustee will notify the Operating
Partnership at any time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems necessary, the Operating
Partnership will reserve additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining such additional CUSIP
numbers the Trustee shall deliver such additional CUSIP numbers to the Operating
Partnership and DTC.
REGISTRATION
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register maintained under the Indenture
governing such Global Security. The beneficial owner of a Book-Entry Note (or
one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Note, the
"Participants") to act as agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such Participants, a credit balance
with respect to such Note in the account of such Participants. The ownership
interest of such beneficial owner in such Note will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
TRANSFERS
Transfers of a Book-Entry Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial transferors and transferees
of such Note.
CONSOLIDATION AND EXCHANGE
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed Rate Book-Entry Notes
having the same original issuance date, interest rate and Stated Maturity and
with respect to which interest has been paid to the same date or (B) Floating
Rate Book-Entry Notes having the same interest rate formula, original issuance
date, Initial Interest Rate, Interest Payment Dates, Index Maturity, Spread or
Spread Multiplier, minimum interest rate (if any), maximum interest rate (if
any) and with respect to which interest has been paid to the same date, (ii) a
date, occurring at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number, obtained from the
Operating Partnership, to be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its participants (including the
Trustee) a written reorganization notice to the effect that such exchange will
occur on such date. Prior to the specified exchange date the Trustee will
deliver to the CUSIP Service Bureau a written notice setting forth such exchange
date and the new CUSIP number and stating that, as of such exchange date, the
CUSIP numbers of the Global
B-14
<PAGE> 65
Securities to be exchanged will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Securities for a single Global
Security bearing the new CUSIP number and a new Interest Accrual Date, and the
CUSIP numbers of the exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Securities to be exchanged exceed
$200,000,000 in aggregate principal amount, one Global Security will be
authenticated and issued to represent each $200,000,000 of principal amount of
the exchanged Global Securities and an additional Global Security will be
authenticated and issued to represent any remaining principal amount of such
Global Securities (see "Denominations" below).
MATURITIES
Each Book-Entry Note will mature on a date not less than nine months after
the settlement date for such Note. A Floating Rate Book-Entry Note will mature
only on an Interest Payment Date for such Note.
DENOMINATIONS
Book-Entry Notes will be issued in principal amounts of $100,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities representing one or more Book-Entry Notes will be denominated in
principal amounts not in excess of $1,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of $200,000,000 would, but for
the preceding sentence, be represented by a single Global Security, then one
Global Security will be issued to represent each $200,000,000 principal amount
of such Book-Entry Note or Notes and an additional Global Security will be
issued to represent any remaining principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global Securities representing such
Book-Entry Note or Notes shall be assigned the same CUSIP number.
INTEREST
General. Interest on each Book-Entry Note will accrue from the Interest
Accrual Date of the Global Security representing such Note. Each payment of
interest on a Book-Entry Note will include interest accrued through the day
preceding, as the case may be, the Interest Payment Date or Maturity; provided,
however, that if the Interest Reset Dates with respect to any such Note are
daily or weekly, interest payable on any Interest Payment Date, other than
interest payable on any date on which principal for such Note is payable, will
include interest accrued from but excluding the second preceding Regular Record
Date to and including the next preceding Regular Record Date. Interest payable
at the Maturity of a Book-Entry Note will be payable to the Person to whom the
principal of such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of any interest payable and
certain other information regarding the related Global Security in the
appropriate weekly bond report published by Standard & Poor's Corporation.
B-15
<PAGE> 66
On the first Business Day of January, April, July and October of each
year, the Trustee will deliver to the Operating Partnership and DTC a written
list of Regular Record Dates and Interest Payment Dates that will occur with
respect to Floating Rate Book-Entry Notes during the six-month period beginning
on such first Business Day. Promptly after each Interest Determination Date (as
defined in Appendix A hereto) for Floating Rate Notes, the Operating Partnership
will notify the Trustee, and the Trustee in turn will notify Standard & Poor's
Corporation, of the interest rates determined on such Interest Determination
Date.
PAYMENTS OF PRINCIPAL INTEREST
Payments of Interest Only. Promptly after each Regular Record Date, the
Trustee will deliver to the Operating Partnership and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on each Global
Security on the following Interest Payment Date (other than an Interest Payment
Date coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard & Poor's Corporation.
The Operating Partnership will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (other than at Maturity),
and the Trustee will pay such amount to DTC at the times and in the manner set
forth below under "Manner of Payment."
Payments at Maturity. On or about the first Business Day of each month,
the Trustee will deliver to the Operating Partnership, DTC and each of the
Trustees a written list of principal and interest to be paid on each Global
Security maturing in the following month. The Operating Partnership, the Trustee
and DTC will confirm the amounts of such principal and interest payments with
respect to each such Global Security on or about the fifth Business Day
preceding the Maturity of such Global Security. The Operating Partnership will
pay to the Trustee, as the paying agent, the principal amount of such Global
Security, together with interest due at such Maturity. The Trustee will pay such
amount to DTC at the times and in the manner set forth below under "Manner of
Payment."
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global Security
and deliver it to the Operating Partnership with an appropriate debit advice. On
the first Business Date of each month, the Trustee will prepare a written
statement indicating the total principal amount of Outstanding Global Securities
for which it serves as trustee as of the immediately preceding Business Day.
Manner Of Payment. The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or at Maturity shall be paid by
the Operating Partnership to the Trustee in funds available for use by the
Trustee as of 9:30 A.M. (New York City time) on such date. The Operating
Partnership will make such payment on such Global Securities by instructing the
Trustee to withdraw funds from an account maintained by the Operating
Partnership at the Trustee. The Operating Partnership will confirm such
instructions in writing to the Trustee, with a copy to the Trustee under the
Indenture governing such Global Securities if such Global Securities are of
subordinated or junior subordinated rank. For maturity, redemption or any other
principal payments: prior to 10 A.M. (New York City time) on such date or as
soon as possible thereafter, the Trustee will make such payments to DTC in same
day funds
B-16
<PAGE> 67
in accordance with DTC's Same Day Funds Settlement Paying Agent Operating
Procedures. For interest payments: the Trustee will make such payments to DTC in
accordance with existing arrangements between DTC and the Trustee. DTC will
allocate such payments to its participants in accordance with its existing
operating procedures. Neither the Operating Partnership (either as issuer or as
Paying Agent) nor the Trustee shall have any direct responsibility or liability
for the payment by DTC to such Participants of the principal of and interest on
the Book-Entry Notes.
The amount of any taxes required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial owner of such Note.
SETTLEMENT PROCEDURES
Settlement Procedures with regard to each Book-Entry Note sold by the
Operating Partnership through an Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Operating Partnership by
telephone, telex or facsimile, of the following settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payments of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity
7. Issue Price and any OID information.
8. Trade date.
9. The DTC Participant account number of such Agent.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
B-17
<PAGE> 68
(b) Floating Rate Notes:
i) interest rate basis
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest rate reset periods
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest rates, if any
viii) record dates
ix) interest determination dates
x) overdue rate, if any
11. The date on or after which the Notes are redeemable at the option of
the Operating Partnership, and additional redemption or repurchase
provisions, if any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Operating Partnership upon
settlement.
B. The Operating Partnership will assign a CUSIP number to the Global
Security representing such Note and then advise the Trustee by telephone
(confirmed in writing at any time on the same date) or electronic
transmission of the information set forth in Settlement Procedure "A"
above, such CUSIP number and the name of such Agent.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement
information to DTC, the Presenting Agent, Standard & Poor's Corporation
and, upon request, the Trustee under the Indenture pursuant to which such
Note is to be issued:
1. The information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by which
such date succeeds the related "DTC Record Date" (which term means
the Regular Record Date except in the case of floating rate notes
which reset daily or weekly in which case it means the date 5
calendar days immediately preceding the Interest Payment Date) and
amount of interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of the Global Security representing such Note.
B-18
<PAGE> 69
6. Whether such Global Security will represent any other Book-Entry
Note (to the extent known at such time).
D. The Trustee, as Trustee, will complete and authenticate the note
certificate evidencing the Global Security representing such Book-Entry
Note.
E. DTC will credit such Note to the Trustee's participant account at DTC.
F. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the Presenting Agent's
participant account and (ii) debit the Presenting Agent's settlement
account and credit the Trustee's settlement account for an amount equal to
the price of such Note less the Presenting Agent's commission.
G. The Presenting Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit such Note to the
participant accounts of the Participants with respect to such Note and
(ii) to debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent for an amount equal to the
price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. The Trustee will credit to an account of the Operating Partnership
maintained at the Trustee funds available for immediate use in the amount
transferred to the Trustee in accordance,with Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a copy of the most
recent Prospectus applicable to the Note with or prior to any written
offer of Notes and the confirmation and payment by the purchaser of the
Note.
The Presenting Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
SETTLEMENT PROCEDURES TIMETABLE
For orders of Book-Entry Notes solicited by an Agent, as agent, and
accepted by the Operating Partnership for settlement, Settlement Procedures "A"
through "J" set forth above shall be completed as soon as possible but not later
than the respective times (New York City time) set forth below:
B-19
<PAGE> 70
<TABLE>
<CAPTION>
=========================================================
SETTLEMENT
PROCEDURE TIME (NEW YORK)
=========================================================
<S> <C>
A-B 11:00 A.M. on the Sale date
- ---------------------------------------------------------
C 2:00 PM on Sale date
- ---------------------------------------------------------
D 3:00 P.M. on date before Settlement
date
- ---------------------------------------------------------
E 10:00 A.M. on Settlement date
- ---------------------------------------------------------
F-G 2:00 P.M. on Settlement Date
- ---------------------------------------------------------
H 4:45 P.M. on Settlement date
- ---------------------------------------------------------
I-J 5:00 P.M. on Settlement date
=========================================================
</TABLE>
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "A," "B" and "C" shall be completed as soon as practicable
but no later than 11:00 A.M. and 2:00 P.M., as the case may be, on the first
Business Day after the sale date. If the initial interest rate for a Floating
Rate Book-Entry Note has not been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but no later than 11:00 A.M. and 12:00
Noon, respectively, on the second Business Day before the settlement date.
Settlement Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
FAILURE TO SETTLE
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "F," the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to the Trustee's
participant account. DTC will process the withdrawal message, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Note that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to all the Book-Entry
Notes represented by a
B-20
<PAGE> 71
Global Security, the Trustee will mark such Global Security "canceled," make
appropriate entries in the Trustee's records and send such canceled Global
Security to the Operating Partnership. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry Notes represented by a
Global Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the other of which shall represent
the other Book-Entry Notes previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such Note may enter
SDFS deliver orders through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and "G," respectively.
Thereafter, the Trustee will deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect to
a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedure "D," for the authentication and issuance of a Global
Security representing the other Book-Entry Notes to have been represented by
such Global Security and will make appropriate entries in its records.
B-21
<PAGE> 72
EXHIBIT C
PURCHASE AGREEMENT
__________, 199_
Liberty Property Limited Partnership
65 Valley Stream Parkway
Malvern, PA 19355
Attention: George J. Alburger, Jr.
The undersigned agrees to purchase the following principal amount of the
Notes described in the Distribution Agreement dated October 24, 1997 (as it may
be supplemented or amended from time to time, the "Distribution Agreement"):
<TABLE>
<S> <C>
Principal Amount: $ ___________
Specified Currency: ___________
Denominated and Indexed Currencies: ___________
Interest Rate: ____%
Discount: ____% of Principal Amount
Aggregate Price to be paid to
Operating Partnership (in immediately
available funds): $ ___________
Settlement Date: ___________
Other Terms: ___________
</TABLE>
[In the case of Notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New
York City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the Exchange
Rate Agent) for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate
<PAGE> 73
amount of the Specified Currency payable to all holders of Notes denominated in
such Specified Currency electing to receive U.S. dollar payments and at which
the applicable dealer commits to execute a contract. If such bid quotations are
not available, payments will be made in the Specified Currency.]
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants and
agreements contained therein, including, without limitation, your obligations
pursuant to Section 7 thereof. Our obligation hereunder is subject to the
further condition that we shall receive (a) the opinions required to be
delivered pursuant to Sections 5(e) and 5(f) of the Distribution Agreement, (b)
the certificate required to be delivered pursuant to Section 5(h) of the
Distribution Agreement, (c) the letter referred to in Section 5(g) in each case
dated as of the above Settlement Date and (d) [insert other conditions as
appropriate].
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the Operating
Partnership, other than borrowings under your revolving credit agreements and
lines of credit, the private placement of securities and issuances of your
commercial paper.
We may terminate this Agreement, immediately upon notice to you, at any
time prior to the Settlement Date, if prior thereto there shall have occurred:
(i) any change, or any development involving a prospective change, in or
affecting primarily the business, properties, condition (financial or other),
results of operations or prospects of the Operating Partnership or the Operating
Partnership and its subsidiaries taken as a whole which materially impairs the
investment quality of the Notes; (ii) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or the
establishment of minimum prices on such exchange; (iii) a general moratorium on
commercial banking activities declared by Federal or state authorities; (iv) any
downgrading in the rating accorded the Operating Partnership's debt securities
by any "nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Operating Partnership (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national calamity or
emergency; or (vi) any material adverse change in the existing financial,
political or economic conditions in the United States, or you are unable to
provide any of the opinions, certificates or letters referred to in the second
preceding paragraph. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in Sections 4, 7 and 15
of the Distribution Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
C-2
<PAGE> 74
Lehman Brothers Inc.
By: ________________________________________________
Authorized Signatory
Donaldson, Lufkin & Jenrette Securities Corporation
By: ________________________________________________
Name:
Title:
First Chicago Capital Markets, Inc.
By: ________________________________________________
Name:
Title:
J.P. Morgan Securities Inc.
By: ________________________________________________
Name:
Title:
UBS Securities LLC
By: ________________________________________________
Name:
Title:
C-3
<PAGE> 75
Confirmed and Accepted:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust
By: ______________________________________
Name:
Title:
C-4
<PAGE> 76
EXHIBIT D
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. ___
TO DISTRIBUTION AGREEMENT DATED OCTOBER 24, 1997, AS AMENDED
[Insert Title of Foreign Currency or, in the case of
Indexed Notes, the Denominated and Indexed
Currencies]
The undersigned hereby agree that for the purposes of the issue and sale
of Notes denominated in title of currency or currency unit (the "Applicable
Foreign Currency") [and indexed to title of currency or currency unit (the
"Indexed Currency")] pursuant to the Distribution Agreement, dated October 24,
1997, as it may be amended (the "Distribution Agreement"), the following
additions and modifications shall be made to the Distribution Agreement. The
additions and modifications adopted hereby shall be of the same effect for the
sale under the Distribution Agreement of all Notes denominated in the Applicable
Foreign Currency and indexed to the Indexed Currency, whether offered on an
agency or principal basis, but shall be of no effect with respect to Notes
denominated in any currency or currency unit other than the Applicable Foreign
Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement shall have the same meanings as in the
Distribution Agreement. The terms Agent or Agents, as used in the Distribution
Agreement, shall be deemed to refer only to the undersigned Agents for purposes
of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
_____________, 199__
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: _____________________
Name:
Title:
<PAGE> 77
Confirmed and Accepted: _____________, 199__
[NAME(S) OF AGENT(S) PARTICIPATING
IN THE OFFERING OF NOTES IN THE APPLICABLE FOREIGN CURRENCY]
By: _____________________
Name:
Title:
D-2
<PAGE> 1
EXHIBIT 10.6
LIBERTY PROPERTY LIMITED PARTNERSHIP,
AS OBLIGOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
-----------------------
SUBORDINATED INDENTURE
DATED AS OF , 1997
-------------------------------------------
Debt Securities
-------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES .........................................................................................................1
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................................................1
SECTION 101. Definitions................................................................................1
SECTION 102. Compliance Certificates and Opinions......................................................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
SECTION 110. Benefits of Indenture.....................................................................16
SECTION 111. Non-Recourse..............................................................................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........................................................17
ARTICLE THREE
THE SECURITIES..........................................................................................18
SECTION 301. Amount Unlimited; Issuable in Series......................................................18
SECTION 302. Denominations.............................................................................22
SECTION 303. Execution, Authentication, Delivery and Dating............................................22
SECTION 304. Temporary Securities......................................................................24
SECTION 305. Registration, Registration of Transfer and Exchange.......................................26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................29
SECTION 307. Payment of Interest; Interest Rights Preserved............................................31
SECTION 308. Persons Deemed Owners.....................................................................32
SECTION 309. Cancellation..............................................................................33
SECTION 310. Computation of Interest...................................................................34
ARTICLE FOUR
SATISFACTION AND DISCHARGE..............................................................................34
SECTION 401. Satisfaction and Discharge of Indenture...................................................34
SECTION 402. Application of Trust Funds................................................................35
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE FIVE
<S> <C>
REMEDIES................................................................................................35
SECTION 501. Events of Default.........................................................................35
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................38
SECTION 504. Trustee May File Proofs of Claim..........................................................39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons........................................................................................39
SECTION 506. Application of Money Collected............................................................40
SECTION 507. Limitation on Suits.......................................................................40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-
Whole Amount, if any, Interest and Additional Amounts..........................................41
SECTION 509. Restoration of Rights and Remedies........................................................41
SECTION 510. Rights and Remedies Cumulative............................................................41
SECTION 511. Delay or Omission Not Waiver..............................................................41
SECTION 512. Control by Holders of Securities..........................................................41
SECTION 513. Waiver of Past Defaults...................................................................42
SECTION 514. Waiver of Usury, Stay or Extension Laws...................................................42
SECTION 515. Undertaking for Costs.....................................................................42
ARTICLE SIX
THE TRUSTEE.............................................................................................43
SECTION 601. Notice of Defaults........................................................................43
SECTION 602. Certain Rights of Trustee.................................................................43
SECTION 603. Not Responsible for Recitals or Issuance of Securities....................................44
SECTION 604. May Hold Securities.......................................................................45
SECTION 605. Money Held in Trust.......................................................................45
SECTION 606. Compensation and Reimbursement............................................................45
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests............................46
SECTION 608. Resignation and Removal; Appointment of Successor.........................................46
SECTION 609. Acceptance of Appointment by Successor....................................................47
SECTION 610. Merger, Conversion, Consolidation or Succession to Business...............................48
SECTION 611. Appointment of Authenticating Agent.......................................................49
ARTICLE SIX A
SUBORDINATION; SENIORITY................................................................................50
SECTION 601A. Securities Subordinated to Senior Indebtedness...........................................50
SECTION 602A. Issuer Not to Make Payments with Respect to Securities in Certain
Circumstances. ................................................................................51
SECTION 603A. Subrogation of Securities. ..............................................................53
SECTION 604A. Authorization by Holders of Securities...................................................53
SECTION 605A. Notices to Trustee.......................................................................54
SECTION 606A. Trustee's Relation to Senior Indebtedness. ..............................................54
SECTION 607A. No Impairment of Subordination. .........................................................55
SECTION 608A. Article Six A Not To Prevent Events of Default...........................................55
SECTION 609A. Paying Agents Other than the Trustee. ...................................................55
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
SECTION 610A. Securities Senior to Subordinated Indebtedness...........................................55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.......................................................55
SECTION 701. Disclosure of Names and Addresses of Holders..............................................55
SECTION 702. Reports by Trustee........................................................................56
SECTION 703. Reports by Company........................................................................56
SECTION 704. The 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 Entity.....................................................57
SECTION 803. Officers Certificate and Opinion of Counsel...............................................57
ARTICLE NINE
SUPPLEMENTAL INDENTURES.................................................................................58
SECTION 901. Supplemental Indentures Without Consent of Holders........................................58
SECTION 902. Supplemental Indentures with Consent of Holders...........................................59
SECTION 903. Execution of Supplemental Indentures......................................................60
SECTION 904. Effect of Supplemental Indentures.........................................................60
SECTION 905. Conformity with Trust Indenture Act.......................................................60
SECTION 906. Reference in Securities to Supplemental Indentures........................................60
SECTION 907. Notice of Supplemental Indentures.........................................................61
ARTICLE TEN
COVENANTS...............................................................................................61
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount (if any),
Interest and Additional Amounts................................................................61
SECTION 1002. Maintenance of Office or Agency..........................................................61
SECTION 1003. Money for Securities Payments to Be Held in Trust........................................63
SECTION 1004. Intentionally Omitted....................................................................64
SECTION 1005. Existence................................................................................64
SECTION 1006. Maintenance of Properties................................................................64
SECTION 1007. Insurance................................................................................65
SECTION 1008. Payment of Taxes and Other Claims........................................................65
SECTION 1009. Provision of Financial Information.......................................................65
SECTION 1010. Statement as to Compliance...............................................................65
SECTION 1011. Additional Amounts.......................................................................65
SECTION 1012. Waiver of Certain Covenants..............................................................66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES................................................................................67
SECTION 1101. Applicability of Article; Redemption to Maintain REIT Status.............................67
SECTION 1102. Election to Redeem; Notice to Trustee....................................................67
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................................67
SECTION 1104. Notice of Redemption.....................................................................67
</TABLE>
-iv-
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<TABLE>
<CAPTION>
<S> <C>
SECTION 1105. Deposit of Redemption Price..............................................................69
SECTION 1106. Securities Payable on Redemption Date....................................................69
SECTION 1107. Securities Redeemed in Part..............................................................70
ARTICLE TWELVE
SINKING FUNDS...........................................................................................70
SECTION 1201. Applicability of Article.................................................................70
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....................................70
SECTION 1203. Redemption of Securities for Sinking Fund................................................71
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS......................................................................71
SECTION 1301. Applicability of Article.................................................................71
SECTION 1302. Repayment of Securities..................................................................71
SECTION 1303. Exercise of Option.......................................................................72
SECTION 1304. When Securities Presented for Repayment Become Due and Payable
..............................................................................................72
SECTION 1305. Securities Repaid in Part................................................................73
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.................................................................74
SECTION 1403. Covenant Defeasance......................................................................74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..........................................75
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
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> 6
Liberty Property Limited Partnership, as Obligor
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and this Indenture, dated as of , 1997.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C> <C>
(S) 310 (a) (1)....................................................... 607
(a) (2)....................................................... 607
(b) .......................................................... 607, 608
(S) 312 (c) .......................................................... 701
(S) 313 (a) .......................................................... 70
(c) .......................................................... 702
(S) 314 (a) .......................................................... 703
(a) (4)....................................................... 1011
(c) (1)....................................................... 102
(c) (2)....................................................... 102
(e) .......................................................... 102
(S) 315 (b) .......................................................... 601
(S) 316 (a)(last sentence)............................................. 101 ("Outstanding")
(a) (1)(A).................................................... 502, 512
(a) (1)(B).................................................... 513
(b) .......................................................... 508
(S) 317 (a) (1)....................................................... 503
(a) (2)....................................................... 504
(S) 318 (a) .......................................................... 111
(c) .......................................................... 111
</TABLE>
- ------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
Attention should also be directed to Section 318 (c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including
317 of the 1939 Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
-vi-
<PAGE> 7
PARTIES
Indenture (this "Indenture"), dated as of , 1997, by and
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(the "Company") having its principal office at 65 Valley Stream Parkway,
Malvern, Pennsylvania 19355, and The First National Bank of Chicago, a national
banking association, as Trustee hereunder (the "Trustee"), having its Corporate
Trust Office (as defined below) at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes debt securities (the "Securities") evidencing its unsecured
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Acquisition Lines of Credit" means, collectively, any secured
lines of credit of the Company or any Subsidiary, the proceeds of which shall be
used, among other things, to acquire interests, directly or indirectly, in real
estate.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of certain
taxes imposed on certain Holders and which are owing to such Holders.
"Adjusted Total Assets" as of any date means the total of all
assets determined in accordance with GAAP plus accumulated depreciation.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the aggregate
amount of any interest expensed for the four consecutive fiscal quarters most
recently ended prior to such date as determined in accordance with GAAP.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
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<PAGE> 9
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trustees" means the board of trustees of the Trust,
the executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of the Trust,
certified by the Secretary or an Assistant Secretary of the Trust to have been
duly adopted by the Board of Trustees and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation or
executive order to close.
"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 Shares" means, with respect to any Person, capital
stock or shares of beneficial interest issued by such Person other than
Preferred Shares.
"Company" means Liberty Property Limited Partnership, a
Pennsylvania limited partnership, until a successor Company shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of and on behalf of the Company by
the Chairman of the Board, the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Trust, as general partner of the Company, and delivered to the Trustee.
"Consolidated Income Available for Debt Service" as of any
date means Consolidated Net Income of the Company and its Subsidiaries plus
amounts that have been deducted for (a) interest on Debt of the Company and its
Subsidiaries, (b) provision for taxes of the Company and its Subsidiaries based
on income, (c) amortization of debt discount, (d) depreciation and amortization,
(e) the effect of any noncash charge resulting from a change in accounting
principles in determining Consolidated Net Income and (f) amortization of
deferred charges, for the four consecutive fiscal quarters most recently ended,
all as determined in accordance with GAAP, and without taking into account any
provision for gains and losses on properties.
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<PAGE> 10
"Consolidated Net Income" for any period means the amount of
net income (or loss) of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670, except that for
purposes of Sections 305 and 1002, such term shall mean the office or agency of
the Trustee in New York, New York, which office at the date hereof is located at
14 Wall Street, 8th Floor, New York, New York 10005; attention: Corporate Trust
Administration.
"corporation" includes corporations, associations, companies,
real estate investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness
of the Company or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money 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) reimbursement obligations in connection with any letters of
credit actually issued or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) any lease of property by the Company
or any Subsidiary as lessee which is reflected on the Company's consolidated
balance sheet as a capitalized lease in accordance with GAAP; but in the case of
items of indebtedness incurred under (i) through (iii) above only to the extent
that any such items (other than letters of credit) would appear as a liability
on the Company's consolidated balance sheet in accordance with GAAP; and also
includes, to the extent not otherwise included, any obligation of the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any person, any
capital stock or partnership interest of such person which by the terms of such
capital stock or partnership interest (or by the terms of any security into
which it is convertible or for which it is exchangeable or exercisable), upon
the occurrence of any event or otherwise: (i) matures or is
-4-
<PAGE> 11
mandatorily redeemable, pursuant to a sinking fund obligation or 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 maturity of the relevant series of
Securities.
"DTC" means The Depository Trust Company for so long as it
shall be a clearing agency registered under the Exchange Act, or such successor
as the Company shall designate from time to time in an Officer's Certificate
delivered to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and
any successor statute thereto, in each case as amended from time to time and the
rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in
effect from time to time, as used in the United States applied on a consistent
basis; provided, that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
-5-
<PAGE> 12
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Make-Whole Amount" means, in connection with any optional
redemption of any Securities, the excess, if any, of: (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to the date
of redemption) that would have been payable in respect of each such
-6-
<PAGE> 13
dollar if such redemption had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given) from the respective dates on which such principal and
interest would have been payable if such redemption had not been made, to the
date of redemption; over (ii) the aggregate principal amount of the Securities
being redeemed.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers Certificate" means a certificate signed by the
Chairman of the Board of Trustees, the President or a Vice-President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Trust, as general partner of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or other counsel for
the Trust or the Company and who shall be reasonably satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for
whose payment or redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto, provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent
provided in Sections 1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Article Twelve;
and
(iv) Securities which have been paid
pursuant to Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
provided,
-7-
<PAGE> 14
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, company, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities
of or within any series, means the place or places where the principal of (and
premium, if any) and interest 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.
-8-
<PAGE> 15
"Preferred Shares" means, with respect to any Person, capital
stock or shares of beneficial interest issued by such Person that is entitled to
a preference or priority over any other capital stock or shares of beneficial
interest issued by such Person upon any distribution of such Persons assets,
whether by dividend or upon liquidation.
"Redemption Date," when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means 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 the
Securities.
"Registered Security" means any Security which is registered
in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Reinvestment Rate" means the yield on Treasury securities at
a constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to Stated Maturity of the
principal being redeemed (the "Treasury Yield"), plus 0.25%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release under the heading "Week Ending" for "U.S.
Government Securities-Treasury Constant Maturities" with a maturity equal to
such remaining life; provided, that if no published maturity exactly corresponds
to such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities. 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. If
the format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely approximates
the above manner, as reasonably determined by the Company.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer, the controller or any other officer of the Trustee
customarily performing
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<PAGE> 16
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any
successor statute thereto, in each case as amended from time to time and the
rules and regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of and interest on,
or substantially similar payments to be made by the Company in respect of, the
following, whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) indebtedness of the Company for
money borrowed or represented by purchase-money obligations; (b) indebtedness of
the Company evidenced by notes, debentures or bonds, or other securities issued
under the provisions of an indenture, fiscal agency agreement or other
instrument, (c) obligations of the Company as lessee under leases of property
either made as part of any sale and lease-back transaction to which the Company
is a party or otherwise, (d) indebtedness of partnerships and joint ventures
which is included in the Company's consolidated financial statements,
(e) indebtedness, obligations and liabilities of others in respect of which the
Company is liable contingently or otherwise to pay or advance money or property
or as guarantor, endorser or otherwise or which the Company has agreed to
purchase or otherwise acquire, and (f) any binding commitment of the Company to
fund any real estate investment or to fund any investment in any entity making
such real estate investment; but excluding, however, (1) any such indebtedness,
obligation or liability referred to in clauses (a) through (f) above as to
which, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness, obligation or
liability is not superior in right of payment to the Securities, or ranks pari
passu with the Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Securities are subordinated and
(3) the Securities. As used in the preceding sentence the term "purchase-money
obligations" shall mean indebtedness or obligations evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest but excluding indebtedness or obligations for which recourse
is limited to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, but shall not include any trade accounts payable. A
distribution may consist of cash, securities or other property.
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<PAGE> 17
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"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 reports 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.
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock, partnership
interests or membership interests, as the case may be, of which is owned or
controlled, directly or indirectly, by the Company or by one or more
Subsidiaries of the Company. Liberty Property Development Corp. and Liberrty
Property Development Corp.-II are each a Subsidiary for purposes of this
definition. For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general partners,
managers or trustees, as the case may be, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Trust " means Liberty Property Trust, a self-administered and
self-managed Maryland real estate investment trust and sole general partner of
the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
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"Unencumbered Total Asset Value" as of any date means the sum
of (i) the value of those Undepreciated Real Estate Assets not subject to an
encumbrance and (ii) the value of all other assets of the Company and its
Subsidiaries on a consolidated basis not subject to an encumbrance determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, company or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has
been complied with; and
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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, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
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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.
(d) The ownership of Bearer Securities may be proved by
the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed
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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 other 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, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be
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specified in such Securities on a Business Day, such publication to be not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. Any such notice shall be deemed to have been given on the
date of such publication or, if published more than once, on the date of the
first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Non-Recourse. Notwithstanding anything contained herein to
the contrary, 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 (including, without limitation,
any obligation or indebtedness relating to the
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principal of, or premium or Make-Whole Amount, if any, interest or any other
amounts due, or claimed to be due, on any Security issued hereunder), or for any
claim based thereon or otherwise in respect thereof, shall be had (i) against
the Trust or any other partner in the Company, (ii) against any Person which
owns an interest, directly or indirectly, in any partner in the Company or (iii)
against any promoter, as such, or against any past, present or future
shareholder, officer, director or partner, as such, of the Company, the Trust or
of any successor, either directly or through the Company, the Trust 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. The Holders of the Securities
hereunder acknowledge by the acceptance of the Securities that their sole
remedies under this Indenture for any Default by the Company in the payment of
the principal of, or any premium or Make-Whole Amount, if any, interest or any
amounts due, or claimed to be due, on any Security, or otherwise, are limited to
claims against the property of the Company as provided in Section 503 hereof.
SECTION 112. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, provided that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with this Indenture, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
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rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
to Section 611, the Trustee's certificate of authentication shall be
insubstantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By:
-------------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (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
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written instructions (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear and/or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series shall be
payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment Dates on which such
interest will be payable and the Regular Record Date, if
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any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date shall be determined, and the basis upon
which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium
or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company, if
the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any provision or at the option of
a Holder thereof, and the period or periods within which or the date or dates on
which, the price or prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased (including without limitation whether, and the extent to which, the
premium shall be payable in connection therewith), in whole or in part, pursuant
to such obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall
be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in which
payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make- Whole Amount, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies,
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commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the series
are to be payable, at the election of the Company, or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Securities are denominated or stated to
be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305, and,
if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 304;
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(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the exercise
of warrants, the time, manner and place for such Securities to be authenticated
and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);
(23) the terms and conditions, if any, upon which such Securities may
be subordinated to other indebtedness of the Company;
(24) the terms and conditions, if any, for securing all or any portion
of the indebtedness evidenced by the Securities of the series; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company on behalf of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be
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issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed by the
Chairman of the Board, and President or one of the Executive Vice Presidents,
and the Chief Financial Officer of the Trust, as general partner of the Company.
The signature of any of these officers on the Securities and coupons may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trust 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
and did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such
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Securities, the Trustee shall be entitled to receive, and (subject to TIA
Section 315(a) through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel complying with Section 102 and stating
that
(a) the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the knowledge of the
signers of such certificate, no Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
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certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the
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"Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such
temporary global Security, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established
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pursuant to Section 301), for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to
this Indenture (or in such other forms as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the date
of certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the Trustee prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
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
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surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is "DTC", then, unless the terms of such global Security expressly
permit such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Company
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shall appoint a successor depositary with respect to such global Security or
Securities. If (x) a successor depositary for such global Security or Securities
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such unwillingness, inability or ineligibility, (y)
an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to cease
acting as depositary for such global Security or Securities or (z) the Company,
in its sole discretion, determines at any time that all Outstanding Securities
(but not less than all) of any series issued or issuable in the form of one or
more global Securities shall no longer be represented by such global Security or
Securities, then the Company shall execute, and the Trustee shall authenticate
and deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such global Security or Securities. If any beneficial owner of an interest in
a permanent global Security is otherwise entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as
shall be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the
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Company and the Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company, or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such 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. ____ 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
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permanent global Security held for its account by Cede & Co. or the Common
Depositary, as the case may be, for the purpose of permitting such party to
credit the interest received by it in respect of such permanent global Security
to the accounts of its participants for the benefit of the beneficial owners
thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at the same
time the Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the 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
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such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
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Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company, or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary, its participants and
owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such depositary (or
its nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by the Company Order, the
Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 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
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Securities surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of such series for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense of the Company, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium or
Make-Whole Amount, if any) and interest, and any Additional Amounts with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with. Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee and
any predecessor Trustee under Section 606, the obligations of the Company to any
Authenticating Agent under Section 611 and, if money shall have been deposited
with and held by the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled
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thereto, of the principal (and premium or Make-Whole Amount, if any), and any
interest and Additional Amounts for whose payment such money has deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon becomes
due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the making of any sinking fund payment when and as due
by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company, or under any mortgage, indenture or other
instrument of the Company (including a default with respect to Securities of any
series other than that series) under which there may be issued or by which there
may be secured any indebtedness of the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor on a full recourse basis)
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall have
resulted in such indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to the date on
which it
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would otherwise have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or annulled, within
a period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding Securities
of that series, a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its property, or
(C) orders the liquidation of the Company or any Significant
Subsidiary, and the order or decree remains unstayed and in effect for 90 days;
or
(8) any other Event of Default provided with respect to Securities of
that series.
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 (other than an Event of Default specified
in clause (6) or (7) of Section 501 that occurs with respect to the Company),
then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the
principal of (or, if any Securities are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified in the
terms thereof), and premium
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(if any) and accrued interest on, 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, premium
(if any), and accrued interest or specified portion thereof shall become
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (5) of Section 501 has occurred
and is continuing, such declaration of acceleration shall be automatically
rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (5) along with any other events of default that have been
triggered by the Event of Default (whether or not a notice or declaration of
acceleration shall have been given by the holders of the relevant indebtedness)
shall be remedied or cured by the Company and/or the relevant Subsidiary or
waived by the holders of the relevant indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (6) or (7) of Section 501 occurs with respect to the
Company, the principal of (or specified portion thereof), premium, if any, and
accrued interest on the Securities of all series then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay in the currency, currency unit or composite currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that series and any
related coupons,
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or
rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional Amounts at the
rate or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make-Whole Amount,
if any) or interest on
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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 Amount, with
interest upon any overdue principal (and premium or Make-Whole Amount, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest or Additional Amounts, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall
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have made any demand on the Company for the payment of overdue principal,
premium or Make-Whole Amount, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities of such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder of a Security or coupon any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or coupons or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
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;
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SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium or Make-Whole Amount, if
any) and interest and any Additional Amounts payable, in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium or Make-Whole Amount, if
any), interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium or Make-Whole Amount, if any)
and (subject to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of such
series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
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(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole Amount,
if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder
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known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest on or any
Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Securities
of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Trustees may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
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matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the
Securities has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to the Securities such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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, coupons, or any prospectus pursuant to which the Securities are
offered except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
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SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder as mutually agreed upon (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each of
the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee, its directors, officers and
employees, and any predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its own
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium or Make-Whole Amount, if
any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
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(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance or such appointment, become the successor Trustee
with respect to the Securities of such series and to
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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, the resigning or removed Trustee
or any Holder of a Security who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co- trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor
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Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a
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bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
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THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
----------------------------------------
as Authenticating Agent
By:
----------------------------------------
as Authorized Signatory
ARTICLE SIX A
SUBORDINATION; SENIORITY
SECTION 601A. Securities Subordinated to Senior Indebtedness.
(a) The Issuer agrees, and each Holder of the Securities of any
series by his acceptance thereof likewise agrees, that the payment of the
principal of and Interest on the Securities (all of the foregoing, a "Payment or
Distribution") is subordinated and junior in right of payment, to the extent and
in the manner provided in this Article Six A, except as provided in Section 402,
to the prior payment in full in cash of all Senior Indebtedness whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guarantied.
A Payment or Distribution shall include any asset of any kind or
character, and may consist of cash, securities or other property, by setoff or
otherwise, and shall include, without limitation, any purchase, redemption or
other acquisition of the Securities or the making of any deposit of funds or
securities pursuant to this Indenture (including, without limitation, any
deposit pursuant to Article Five hereof).
(b) The Senior Indebtedness of the Issuer shall continue to be
Senior Indebtedness and entitled to the benefit of these subordination
provisions irrespective of any amendment, modification or waiver of any term of
any instrument relating to the Senior Indebtedness or the extension or renewal
or refinancing of the Senior Indebtedness.
(c) All the provisions of this Indenture and the Securities
shall be subject to the provisions of this Article Six A so far as they may be
applicable thereto, except that nothing in this Article Six A shall apply to
claims for, or payments to, the Trustee under or pursuant to Section 606.
(d) No right of any holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time or in any way be affected or
impaired by any failure to act on the part of the Issuer, any Paying Agent, the
Holders of the Securities, the Trustee or the holders of the Senior
Indebtedness, or by any noncompliance by the Issuer, any Paying Agent, the
Holders of the Securities or the Trustee with any of the terms, provisions and
covenants of the Securities or this Indenture, regardless of any knowledge
thereof that any such holder of Senior Indebtedness may have or be otherwise
charged with.
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(e) In the event that the Securities are declared due and
payable before their expressed maturity because of the occurrence of a default
hereunder, the Issuer will give prompt notice in writing of such happening to
the holders of Senior Indebtedness.
SECTION 602A. Issuer Not to Make Payments with Respect to Securities in
Certain Circumstances. No Payment or Distribution shall be made by the Issuer on
account of a principal of or Interest on the Securities, whether upon stated
maturity, upon redemption or acceleration, or otherwise, or on account of the
purchase or other acquisition of Securities, whether upon stated maturity, upon
redemption or acceleration, or otherwise, if there shall have occurred and be
continuing a default with respect to any Senior Indebtedness which, with notice
or the passage of time or both, would permit the acceleration thereof, and (a)
such default is the subject of a judicial proceeding or (b) notice of such
default in writing or by telegram has been given to the Issuer by any holder or
holders of any Senior Indebtedness, unless and until the Issuer shall have
received written notice from such holder or holders that such default or event
of default shall have been cured or waived or shall have ceased to exist.
Upon any acceleration of the principal of the Securities or any payment
by the Issuer, or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding up or liquidation or reorganization of the Issuer, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Senior Indebtedness shall first be
paid in full in cash, or payment thereof provided for to the satisfaction of the
holders thereof, before any Payment or Distribution is made on account of the
redemption price or principal of or Interest on the Securities; and (subject to
the power of a court of competent jurisdiction to make other equitable
provision, which shall a have been determined by such court to give effect to
the rights conferred in this Article Six A upon the Senior Indebtedness and the
holders thereof with respect to the Securities or the Holders thereof or the
Trustee, by a lawful plan of reorganization or readjustment under applicable
law) upon any such dissolution or winding up or liquidation or reorganization,
any Payment or Distribution by the Issuer, or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article Six A, shall be paid by the Issuer or by any
Custodian or other Person making such Payment or Distribution directly to the
holders of Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full in cash, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any Payment or Distribution is
made to the Holders of the Securities or to the Trustee, except that the Trustee
will have a lien for the payment of its fees and expenses.
In the event that, notwithstanding the foregoing, any Payment or
Distribution by the Issuer of any kind or character, whether in cash, property
or securities, prohibited by the foregoing, shall be received by the Trustee or
the Holders of the Securities before all Senior Indebtedness is paid in full in
cash, or provision is made for such payment to the satisfaction of the holders
thereof, and if such fact shall then have been or thereafter be made known to a
Trust Officer of the Trustee or, as the case may be, such Holder, then and in
such event such Payment or Distribution shall be paid over or delivered to the
holders of Senior Indebtedness or their
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representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in cash, after giving effect to
any concurrent Payment or Distribution to or for the holders of such Senior
Indebtedness, and, until so delivered, the same shall be held in trust by any
Holder of a Security as the property of the holders of Senior Indebtedness.
The consolidation of the Issuer with, or the merger of the Issuer into,
another Person or the liquidation or dissolution of the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided in
Article Eight shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 602A if such other Person shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 5. Nothing in this Section shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 606.
The holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the obligations of the Holders of the Securities hereunder to the
holders of Senior Indebtedness: (i) change the manner, place or terms of payment
or change or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and/or
(iv) exercise or refrain from exercising any rights against the Issuer and any
other Person.
SECTION 603A. Subrogation of Securities. Subject to the payment in full
in cash of all amounts then due (whether by acceleration of the maturity thereof
or otherwise) on account of all Senior Indebtedness at the time outstanding, the
Holders of the Securities shall be subrogated to the rights of holders of Senior
Indebtedness to receive Payments or Distributions of cash, property or
securities of the Issuer applicable to the Senior Indebtedness until the
principal of and Interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no Payments or Distributions to the holders of
Senior Indebtedness to which the Holders of the Securities or the Trustee would
be entitled except for the provisions of this Article Six A, and no payments
over pursuant to the provisions of this Article Six A to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as between the
Issuer, its creditors other than holders of Senior Indebtedness, and the Holders
of the Securities, be deemed to be a payment by the Issuer to or on account of
the Senior Indebtedness. It is understood that the provisions of this Article
Six A are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
Nothing contained in this Article Six A or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Issuer, its
creditors other than the holders
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of Senior Indebtedness, and the Holders of the Securities, the obligation of the
Issuer, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of and Interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders of the Securities and
creditors of the Issuer other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Six A of
the holders of Senior Indebtedness in respect of cash, property or securities of
the Issuer received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article Six A, the Trustee, subject to the provisions of Sections 601 and
602, and the Holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which any dissolution,
winding up, liquidation or reorganization proceedings are pending, or
certificate of the Custodian or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article Six
A
SECTION 604A. Authorization by Holders of Securities. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate, as
between the Holder of the Security and the holders of Senior Indebtedness, the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes including, without limitation, to
execute, verify, deliver and file any proofs of claim which any holder of Senior
Indebtedness may at any time require in order to prove and realize upon any
rights or claims pertaining to the Securities and to effectuate the full benefit
of the subordination contained herein. Upon failure of the Trustee so to do, any
such holder of Senior Indebtedness shall be deemed to be irrevocably appointed
the agent and attorney-in-fact of the Holder to execute, verify, deliver and
file any such proofs of claim.
SECTION 605A. Notices to Trustee. The Issuer shall give prompt written
notice to the Trustee of any fact known to the Issuer which would prohibit the
making of any payment of moneys to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Six A Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article Six A unless and until
a officer of the Trustee shall have received at its Corporate Trust Office
written notice thereof from the Issuer or a holder or holders of Senior
Indebtedness or from any trustee or agent therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 601
and 602, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if a officer of the Trustee shall not have received at
least three Business Days prior to the date upon which by the terms hereof any
such moneys may become payable for any purpose (including, without limitation,
the payment of the principal of or Interest on any Security) with respect to
such moneys the notice provided for in this Section 605A, then, anything herein
contained to the
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contrary notwithstanding, the Trustee shall have the full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
The Trustee shall be entitled to rely conclusively on the delivery to
it of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee or agent
on behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Six A, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 10, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 606A. Trustee's Relation to Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article Six A in respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in
Section 604 or elsewhere in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Six A, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such
holder if it shall mistakenly pay over or distribute to Holders of the
Securities or the Issuer or any other Person money or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article Six A or
otherwise.
SECTION 607 A. No Impairment of Subordination. No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer, the Trustee or the Holder of any of
the Securities or by any act, or failure to act, in good faith, by any such
holder of Senior Indebtedness, or by any noncompliance by the Issuer, the
Trustee or the Holder of any of the Securities with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.
SECTION 608A. Article Six A Not To Prevent Events of Default. The
failure to make a payment on account of principal of or Interest on the
Securities by reason of any provision in this Article Six A shall not be
construed as preventing the occurrence of an Event of Default under Section 501.
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SECTION 609A. Paying Agents Other than the Trustee. In any case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this Article
Six A shall in such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article Six A in addition to or in place of the Trustee.
SECTION 610A. Securities Senior to Subordinated Indebtedness. The
indebtedness represented by the Securities will be senior and prior in right of
payment to all Subordinated Indebtedness, to the extent and in the manner
provided in such Subordinated Indebtedness.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or if the Company
is not required to file information, documents or reports pursuant to either of
such Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information,
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documents and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
TIA Section 313(c), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
SECTION 704. The Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semi-annually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (1) either the Company shall be the continuing entity, or the successor
entity shall be an entity organized and existing under the laws of the United
States or a State thereof and such successor entity shall expressly assume the
due and punctual payment of the principal of (and premium or Make-Whole Amount,
if any) and any interest (including all Additional Amounts, if any, payable
pursuant to Section 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 entity and (2) immediately after
giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result thereof as having been
incurred by the Company or such Subsidiary at the time 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.
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SECTION 802. Rights and Duties of Successor Entity. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in the event of a
lease, shall be relieved of any further obligation under this Indenture and the
Securities. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities of the same series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); provided, however, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal amount
of that or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such provisions shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; or
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(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1011 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 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 solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount
(if any), Interest and Additional Amounts. The Company covenants and agrees for
the benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on and any Additional Amounts payable
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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 registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1011) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, 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) or conversion at the offices specified in the Security, in London,
England, and the Company hereby
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appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company hereby appoint the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 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 or Make-Whole
Amount, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, The
City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
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
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until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units
or composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any such payment of principal (and
premium or Make-Whole Amount, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms 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
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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. Intentionally Omitted.
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 its existence, rights (by partnership agreement and statute) and
franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if it determines that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties. The Company will cause all of
its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Company and its Subsidiaries
shall not be prevented from selling or otherwise disposing of for value their
respective properties in the ordinary course of its business.
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 insurers of
recognized responsibility and having an A.M. Best policy holder's rating of not
less than A-V.
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 or for which the Company has
set apart and maintains an adequate reserve.
SECTION 1009. Provision of Financial Information. Whether or not the
Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will,
to the extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission
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pursuant to such Sections 13 or 15(d) if the Company were so subject (the
"Financial Information"), 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 also will in any event (x) within 15 days of each Required
Filing Date: (i) transmit by mail to all Holders of Securities, as their names
and addresses appear in the Security Register, without cost to such Holders,
copies of the Financial Information; and (ii) file with the Trustee copies of
the Financial Information, and (y) if filing such documents by the Company with
the Commission is not permitted under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective Holder.
SECTION 1010. Statement as to Compliance. The Company will, in
accordance with Section 314 of the TIA, 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 or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
by the terms of such series established pursuant to Section 301 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
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country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 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 1005 to 1009, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article; Redemption to Maintain REIT
Status.
(a) 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.
(b) The Company shall redeem all or a portion of the Securities of any
series as necessary to comply with any requirement for the Trust's continued
qualification as a real estate investment trust under the Internal Revenue Code
of 1986, as amended.
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
all or 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
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shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date with the same
terms not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such
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Security, the holder will receive, without a charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any,
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall cease to accrue on
and after said date unless the Company shall default in the payment of the
Redemption Price and any accrued interest thereon,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company and the Trustee for
such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on this Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion contained
in such Securities, the then existing conversion price or rate, and the date and
time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one Business Day
prior to any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities convertible into
Common Shares or Preferred Shares, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
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 by the Company shall not be so
paid upon surrender thereof for redemption by reason of a failure to comply with
Section 1105, the principal (and premium or Make-Whole Amount, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security
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without service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed whether at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for the series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of such in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the
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Company shall thereupon be obligated to pay the amount therein specified. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of an at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that at least one Business Day prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not
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later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series that provide for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portion thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with coupons, if any, appertaining thereto maturing after the Repayment Date,
the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, on the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but with interest thereon, unless
the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United
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States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender
of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof by reason of a failure by the Company to
comply with this Section 1304, such principal amount (together with interest, if
any, thereon accrued to such Repayment Date) shall, until paid, bear interest
from the Repayment Date at the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
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
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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.
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 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 Section
or such other covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a default or an Event of
Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than 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
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coupons appertaining thereto, money in an amount, or (3) a combination thereof,
in any case, in an amount, sufficient, without consideration of any reinvestment
of such principal and interest, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest or analogous
payments applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Company with
respect to the trust funds
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representing such deposit or by the Trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as
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provided in Section 1404 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series, shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place 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.
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SECTION 1504. Quorum; Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities 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
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specific percentage, which is
less than a majority, in principal amount 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 act that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
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(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into account
in determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(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
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series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the fact, setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Holders of any or 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 and execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Article
Six) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to Article
Six, the execution of any instrument by a Holder or his agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in 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, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST, as its sole
general partner
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By:
------------------------------
Title:
ATTEST
By:
------------------------------
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-------------------------------
Title: Vice President
ATTEST
By:
------------------------------
Title: Assistant Vice President
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
companies, domestic corporations or any estate or trust the income of which is
subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Liberty Property Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "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.
<PAGE> 90
This certificate excepts and does not relate to [U.S.$] ________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_____________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
- -----------------------------------
(Authorized Signatory)
Name:
Title:
-2-
<PAGE> 91
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S. $]
________________________________________________________ principal amount of the
above-captioned Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic companies, domestic corporations or any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Liberty Property Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations 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.
<PAGE> 92
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_______________19__
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company
of New York, Brussels Office,]
as Operator of the Euroclear
System [Cedel S.A.]
By:
----------------------------
-2-
<PAGE> 93
Exhibit B
---------
OFFICERS' CERTIFICATE
We, ________________________________, Chief Operating Officer, and
____________________________________________________, Chief Financial Officer,
respectively, of Liberty Property Trust, the General Partner (the "General
Partner") of Liberty Property Limited Partnership (the "Company"), pursuant to
Section 301 of the Indenture dated as of _______, 19__ between the Company and
The First National Bank of Chicago, as Trustee (the "Indenture"), hereby certify
that a series of Securities with the following terms has been established by a
Board Resolution and has been denominated _____________Notes due (the "Notes"),
and we further certify as follows with respect to the Notes (unless otherwise
defined herein, capitalized terms shall have the meanings set forth in the
Indenture):
1. the title of the Notes shall be "__________ Notes due _____."
The Notes constitute a series of Securities as defined in the
Indenture. [The Notes shall be issuable as Registered
Securities in permanent global form only in denominations of
$1,000 or any integral multiple thereof;]
2. the maximum aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture shall be
$_____________ (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in
lieu of other Notes pursuant to Section 304, 305, 306, 906,
1107 or 1305 of the Indenture);
3. the principal amount of the Notes shall be payable on
___________, ____, subject to the provisions of the Indenture
and the Notes;
4. interest will accrue from ________, 1997. The Notes will bear
interest at _____% per annum, payable in the manner and on the
dates set forth in the attached form of Notes;
5. the Corporate Trust Office of The First National Bank of
Chicago is appointed the principal paying agent, transfer
agent, and registrar for the Notes and for the purpose
mentioned in Section 1002 of the Indenture. The Notes may be
presented for payment at maturity or redemption at such
Corporate Trust Office, or at any other agency as may be
appointed by the Company from time to time in The City of New
York;
6. [the provisions of Sections 1402 and 1403 of the Indenture
with regard to defeasance and discharge and covenant
defeasance, respectively, shall be applicable to the Notes
without modification];
<PAGE> 94
7. [the Notes may be redeemed at any time at the option of the
Company, in such manner and upon the terms set forth in the
attached form of Notes and the Indenture;]
8. [the Notes will be represented by one or more Global Notes as
described under the caption "Description of the Notes--Book
Entry System" in the Company's Prospectus Supplement dated
_________, 1997 with respect to the offering of the Notes (the
"Prospectus Supplement")(except that, in certain limited
circumstances, the Company may issue Notes in definitive form
to owners of beneficial interests in a Global Note, as
described in the above-referenced section of the Prospectus
Supplement);]
9. the Notes shall have such other terms and conditions as are
set forth in the form of the Notes. The Notes shall be subject
to the provisions of the Indenture; and
10. the attached form of the Notes is in the form approved
pursuant to authority granted by the Board of Directors.
This Certificate is delivered pursuant to the provisions of Sections
201, 301, and 303 of the Indenture. The undersigned hereby certify as follows:
(a) we have read each of the Sections of the Indenture
referred to above;
(b) we have examined the Indenture, the form of Notes and
such other documents, records, and instruments as we
have deemed necessary for purposes of giving this
certificate;
(c) to the best of our knowledge, no Event of Default
with respect to the Notes has occurred and is
continuing;
(d) in our opinion, we have made such examination and
investigation as is necessary to enable us to express
an informed opinion as to whether the conditions
precedent to the issuance of the Notes have been
complied with; and
-2-
<PAGE> 95
(e) in our opinion, the conditions precedent to the
issuance of the Notes have been complied with.
Dated:______________, 1997 Liberty Property Limited Partnership
by: Liberty Property Trust
By:
---------------------------------
Chief Operating Officer
By:
---------------------------------
Chief Financial Officer
-3-
<PAGE> 96
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
REGISTERED
REGISTERED
No. Principal
Amount
CUSIP No.
$
LIBERTY PROPERTY LIMITED PARTNERSHIP
____________ Notes due _____________
Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, upon presentation, the principal sum of
_______________ Dollars ($________________) on __________________, ________, and
to pay interest thereon from _________________, _________ (or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for), semi-annually in arrears on ____________________ and _________________ of
each year, commencing on ________________, 199__, and at Maturity, at a rate of
interest of ___________ % per annum, until payment of said principal sum has
been made or duly provided for. Any capitalized term not defined herein shall
have the meaning assigned to it in that certain Indenture by and among the
Issuer and The First National Bank of Chicago, a _____________________________,
dated as of ___________________, 199__.
<PAGE> 97
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date and at Maturity will be paid to the Holder in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date for such payment, which will be 15 calendar
days (regardless of whether such day is a Business Day) next preceding such
Interest Payment Date or Maturity, as the case may be. Any 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 Holder in
whose name this Note (or one or more predecessor Notes) 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
Notes of this series not less than ten (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 or which the Notes of this
series may be listed, and upon such notice as may be required by such exchange,
as more fully provided in the Indenture.
The principal and Make-Whole Amount, if any, of this Note payable at
Maturity will be paid against presentation and surrender of this Note at the
office or agency of the Issuer maintained for that purpose in The Borough of
Manhattan, The City of New York. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee in The City of New York as the office to
be maintained by it where Notes may be presented for payment, registration of
transfer or exchange and where notices or demands to or upon the Issuer in
respect of the Notes or the Indenture may be served.
Interest payable on this Note will be computed on the basis of a
360-day year consisting of twelve 30-day months. If any Interest Payment Date or
Maturity would otherwise be a day that is not a Business Day, the required
payment will be made on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
[Notes of this series may be redeemed at any time at the option of the
Issuer, in whole or in part, upon notice to the Holders 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 Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes.]
Payments of principal, Make-Whole Amounts, if any, and interest in
respect of this Note will be made by wire transfer of immediately available
funds, in such coin or currency as at the time of payment is legal tender for
the payment of public and private debts, so long as this Note is in global form
as described in Section 203 of the Indenture. If this Note is not in global
form, all such payments will be made by wire transfer of immediately available
funds if the Holder hereof at the applicable record date shall have provided
wire transfer instructions to the Trustee, received by the Trustee no later than
fifteen (15) days prior to the applicable payment date, and otherwise payment
shall be made in accordance with Section 307 of the Indenture. Such wire
transfer instructions shall remain in effect until revoked in a writing received
by the Trustee from the Holder hereof.
-2-
<PAGE> 98
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON
THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to the benefits of the Indenture
referred to on the reverse hereof or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated:______________________, 1997 LIBERTY PROPERTY LIMITED PARTNERSHIP, as
Issuer
By: LIBERTY PROPERTY TRUST, not
individually but as General Partner
By:
------------------------------------
By:
------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated: THE FIRST NATIONAL BANK OF CHICAGO,
------------------------- as Trustee
By:
------------------------------------
Authorized Signatory
-3-
<PAGE> 99
[FORM OF REVERSE OF NOTE]
LIBERTY PROPERTY LIMITED PARTNERSHIP
___% ________________ Notes due ________
This security is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under an Indenture dated as of ______________________ , 1997 (the "Indenture"),
between the Issuer and The First National Bank of Chicago, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the series of Securities of which this Note is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The Securities may be issued in one or
more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary provided in the Indenture. This Security is one of a series
designated on the first page hereof, limited in aggregate principal amount to $
____________________ .
In case an Event of Default with respect to Securities of this series
shall have occurred and be continuing, the principal of, and premium or
Make-Whole Amount, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect, and subject to the
conditions provided in the Indenture.
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 (i) such Holder shall have previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Outstanding Securities of this series, (ii) the Holders of not
less than 25% in principal amount of the Outstanding Securities of this 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, (iii) such Holder
or Holders have offered reasonable indemnity to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity and (v) the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such
request.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer 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 at least a majority
in principal amount of the Securities of such series Outstanding, on behalf of
the Holders of all Securities of such series, to
<PAGE> 100
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holders 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 Issuer, which is
absolute and unconditional, to pay the principal of, premium or Make-Whole
Amount, if any, 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 Issuer in any Place of Payment where the principal of,
premium or 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 Issuer 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 registration of transfer or
exchange of Securities of this series, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. [In no event shall the Issuer be required to pay any
Additional Amounts as contemplated by the Indenture.]
Prior to due presentment of this Security for registration of transfer,
the Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and none of the Issuer, the Trustee or any
authorized agent of the Issuer or the Trustee shall be affected by any notice to
the contrary.
Notwithstanding anything contained herein or in the Indenture to the
contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby (including without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Security), or for any
claim based thereon or otherwise in respect thereof, shall be had (i) against
the Trust or any other
-2-
<PAGE> 101
partner in the Issuer, (ii) against any person which owns an interest, directly
or indirectly, in any partner in the Issuer or (iii) against any promoter, as
such, or against any past, present or future stockholder, partner, officer or
director, as such, of the Issuer or of any successor, either directly or through
the Issuer or any successor, under any rule of law, statute or constitutional
provisions 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 this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series. The Holder of this
Security acknowledges by acceptance of this Security that its sole remedies
under the Indenture for any Default by the Issuer in the payment of the
principal of, or any premium or Make-Whole Amount, if any, interest or any
amounts due, or claimed to be due, on this Security, or otherwise, are limited
to claims against the property of the Issuer as provided in Sections 111 and 503
of the Indenture.
THE INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY
MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer 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.
Terms used herein that are defined in the Indenture shall have the
respective meanings assigned them in the Indenture.
-3-
<PAGE> 102
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:
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties ______Custodian ________
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to
tenants in common Act _____________ State
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:
-------------
-------------------------------
Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securties Exchange Act of 1934, as amended.
-4-
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
EXHIBIT 27
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet at September 30, 1997 (unaudited) and the
Consolidated Statement of Operations for the Nine Months Ended September 30,
1997 (unaudited) and is qualified in its entirety by reference to such financial
statements.
</LEGEND>
<CIK> 0000921112
<NAME> LIBERTY PROPERTY TRUST
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 24,097
<SECURITIES> 0
<RECEIVABLES> 14,212
<ALLOWANCES> 1,195
<INVENTORY> 0
<CURRENT-ASSETS> 38,309
<PP&E> 1,770,599
<DEPRECIATION> 142,837
<TOTAL-ASSETS> 1,735,199
<CURRENT-LIABILITIES> 38,253
<BONDS> 851,875
0
125,000
<COMMON> 43
<OTHER-SE> 605,218
<TOTAL-LIABILITY-AND-EQUITY> 1,735,199
<SALES> 0
<TOTAL-REVENUES> 160,104
<CGS> 0
<TOTAL-COSTS> 42,146
<OTHER-EXPENSES> 36,389
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 40,269
<INCOME-PRETAX> 41,300
<INCOME-TAX> 0
<INCOME-CONTINUING> 41,300
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 35,988
<EPS-PRIMARY> .93
<EPS-DILUTED> .99
</TABLE>
