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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 25, 1998
REGISTRATION NO. 333-61409
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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APARTMENT INVESTMENT AND MANAGEMENT COMPANY
AIMCO PROPERTIES, L.P.
(Exact name of co-registrant as specified in its charter)
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APARTMENT INVESTMENT AND MANAGEMENT COMPANY -- MARYLAND APARTMENT INVESTMENT AND MANAGEMENT COMPANY -- 84-1259577
AIMCO PROPERTIES, L.P. -- DELAWARE AIMCO PROPERTIES, L.P. -- 84-1275621
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
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1873 SOUTH BELLAIRE STREET, 17TH FLOOR PETER K. KOMPANIEZ
DENVER, COLORADO 80222 VICE CHAIRMAN AND PRESIDENT
(303) 757-8101 1873 SOUTH BELLAIRE STREET, 17TH FLOOR
(Address, including zip code, and telephone number, DENVER, COLORADO 80222
including area code, of registrants' principal executive (303) 757-8101
offices) (Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
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JONATHAN L. FRIEDMAN SUSAN J. SUTHERLAND
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE 919 THIRD AVENUE
LOS ANGELES, CALIFORNIA 90071 NEW YORK, NEW YORK 10022
(213) 687-5000 (212) 735-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE(1)(2) REGISTRATION FEE(3)
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Apartment Investment and Management Company:
Debt Securities(4).........................
Preferred Stock, par value $.01 per
share(4).................................
Class A Common Stock, par value $.01 per
share(4)................................. $1,000,000,000 $1,000,000,000
Warrants(4)(5).............................
Guarantees(4)(6)...........................
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AIMCO Properties, L.P.:
Debt Securities............................ $500,000,000 $500,000,000
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Total................................ $1,500,000,000 $1,500,000,000 $442,500
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(1) The aggregate initial offering price of the securities (collectively, the
"Securities") registered hereby will not exceed $1,500,000,000. Such amount
represents the principal amount of any Debt Securities issued at their
principal amount, the issue price rather than the principal amount of any
Debt Securities issued at an original issue discount, the liquidation
preference (or, if different, the issue price) of any Preferred Stock, the
issue price of any Class A Common Stock or Warrants and the exercise price
of any Warrants or convertible Securities. Any Securities registered
hereunder may be sold separately, together as units with other Securities
registered hereunder, or upon exercise or conversion of any such Securities.
(2) The proposed maximum offering price per unit will be determined, from time
to time, by the Registrants in connection with the offering of the
Securities hereunder.
(3) Calculated pursuant to Rule 457(o) of the Securities Act, based on the
maximum aggregate offering price of all the Securities. Pursuant to Rule 429
the prospectus included in this registration statement also relates to
$268,168,000 of Debt Securities, Preferred Stock, Class A Common Stock and
Warrants of Apartment Investment and Management Company, which were
previously registered in an earlier Registration Statement (No. 333-26415).
A filing fee of $81,263 was paid previously in connection with the earlier
registration statement for such securities and is being carried forward. In
the event any of such previously registered securities are offered prior to
the effective date of this Registration Statement, they will not be included
in the Prospectus constituting a part hereof.
(4) Subject to footnote (1), there is being registered hereunder such
indeterminate principal amount of Debt Securities, such indeterminate number
of shares of Preferred Stock, such indeterminate number of shares of Common
Stock, such indeterminate number of Warrants to purchase Debt Securities,
Preferred Stock and Common Stock, such indeterminate principal amount of
Guarantees, and such indeterminate principal amount of Debt Securities, or
number of shares of Preferred Stock or Common Stock as may be issued upon
conversion of, or in exchange for, or upon exercise of, convertible or
exchangeable Debt Securities or Preferred Stock or Warrants (including any
securities issuable upon stock splits and similar transactions pursuant to
Rule 416 under the Securities Act).
(5) Represents Warrants to purchase Debt Securities, Preferred Stock or Class A
Common Stock which may be issued by Apartment Investment and Management
Company.
(6) Represents Guarantees by AIMCO of Debt Securities of AIMCO Properties, L.P.
No separate consideration will be received for any Guarantee.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
THE PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED
PROSPECTUS THAT ALSO RELATES TO APARTMENT INVESTMENT AND MANAGEMENT COMPANY'S
REGISTRATION STATEMENT ON FORM S-3 (NO. 333-26415).
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PROSPECTUS
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
$1,268,168,000
DEBT SECURITIES
PREFERRED STOCK
CLASS A COMMON STOCK
WARRANTS
GUARANTEES
AIMCO PROPERTIES, L.P.
$500,000,000
DEBT SECURITIES
Apartment Investment and Management Company, a Maryland corporation
("AIMCO") which has elected to be taxed for federal income tax purposes as a
real estate investment trust (a "REIT"), may offer from time to time (i) senior,
senior subordinated or subordinated debt securities (the "AIMCO Debt
Securities") consisting of debentures, notes and/or other unsecured evidences of
indebtedness, (ii) shares of its preferred stock, par value $.01 per share (the
"Preferred Stock"), (iii) shares of its Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), and (iv) Warrants to purchase AIMCO Debt
Securities, Preferred Stock or Class A Common Stock, as shall be designated by
AIMCO at the time of the offering (the "Warrants"). AIMCO Properties, L.P., a
Delaware limited partnership and a subsidiary of AIMCO (the "AIMCO Operating
Partnership"), may offer from time to time senior, senior subordinated or
subordinated debt securities (the "OP Debt Securities" and, together with the
AIMCO Debt Securities, the "Debt Securities") consisting of debentures, notes
and/or other unsecured evidences of indebtedness, which may or may not be fully
and unconditionally guaranteed by AIMCO (any such guarantees being referred to
herein as "Guarantees"). The AIMCO Debt Securities, the Preferred Stock, the
Class A Common Stock, the Warrants and the Guarantees are collectively referred
to herein as the "AIMCO Securities" and will have an aggregate initial offering
price of up to $1,268,168,000. The OP Debt Securities will have an aggregate
initial offering price of up to $500,000,000. The AIMCO Securities and the OP
Securities (collectively, the "Securities") may be offered separately or
together (in any combination) and as separate series, in any case, in amounts,
at prices and on terms to be determined at the time of sale.
To the extent not otherwise described herein, the form in which the
Securities are to be issued, and the terms of such Securities, including without
limitation, their specific designation, aggregate principal amount or aggregate
initial offering price, maturity, if any, rate and times of payment of interest
or dividends, if any, redemption, conversion, exchange and sinking fund terms,
if any, voting or other rights, if any, exercise price and detachability, if
any, and other specific terms will be set forth in a Prospectus Supplement (the
"Prospectus Supplement"), together with the terms of offering of such
Securities. If so specified in the applicable Prospectus Supplement, Debt
Securities of a series may be issued in whole or in part in the form of one or
more temporary or permanent global securities. The Prospectus Supplement will
also contain information, as applicable, about certain material United States
Federal income tax considerations relating to the particular Securities offered
thereby. The Prospectus Supplement will also contain information, where
applicable, as to any listing on a national securities exchange of the
Securities covered by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from time
to time by AIMCO or the AIMCO Operating Partnership, or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of any of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of the applicable Prospectus Supplement describing the method and terms
of the offering of such Securities.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED
UNDER "RISK FACTORS" SET FORTH IN THE APPLICABLE PROSPECTUS SUPPLEMENT.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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November , 1998
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING
AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE ON THE FRONT OF THOSE DOCUMENTS.
TABLE OF CONTENTS
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AIMCO and the AIMCO Operating Partnership................... 1
Use of Proceeds............................................. 1
Ratio of Earnings to Fixed Charges.......................... 2
Description of AIMCO Debt Securities........................ 3
Description of OP Debt Securities........................... 10
Description of Preferred Stock.............................. 16
Description of Class A Common Stock......................... 20
Description of Other Classes of Outstanding Stock........... 23
Description of Warrants..................................... 32
Plan of Distribution........................................ 33
Certain Federal Income Tax Consequences..................... 35
Other Tax Consequences...................................... 45
Where You Can Find More Information......................... 45
Legal Matters............................................... 46
Experts..................................................... 46
</TABLE>
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AIMCO AND THE AIMCO OPERATING PARTNERSHIP
AIMCO, a Maryland corporation formed on January 10, 1994, is a
self-administered and self-managed REIT engaged in the ownership, acquisition,
development, expansion and management of multi-family apartment properties. As
of October 31, 1998, through our controlling interests in the AIMCO Operating
Partnership and other limited partnerships and limited liability companies
(collectively, the "Subsidiary Partnerships"), we owned or managed 386,430
apartment units in 2,240 properties located in 49 states, the District of
Columbia and Puerto Rico. Based on apartment unit data compiled as of January 1,
1998 by the National Multi Housing Council, we believe that, as of October 31,
1998, we were the largest owner and manager of multifamily apartment properties
in the United States. As of October 31, 1998, we:
- owned or controlled 62,955 units in 241 apartment properties;
- held an equity interest in 168,746 units in 897 apartment properties; and
- managed 154,729 units in 1,102 apartment properties for third party
owners and affiliates.
We conduct substantially all of our operations through the AIMCO Operating
Partnership. Our wholly owned subsidiary, AIMCO-GP, Inc. (the "General Partner")
is the sole general partner of the AIMCO Operating Partnership. Through the
General Partner and another of our wholly owned subsidiaries, AIMCO-LP, Inc.
(the "Special Limited Partner"), as of October 31, 1998, we owned approximately
an 89% interest in the AIMCO Operating Partnership. Generally, when we refer to
"we" or "us" in this Prospectus, we are referring to AIMCO, the AIMCO Operating
Partnership, the management companies and their respective subsidiaries.
Our principal executive offices are located at 1873 South Bellaire Street,
Denver, Colorado 80222, and our telephone number is (303) 757-8101.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, AIMCO
and the AIMCO Operating Partnership intend to use the net proceeds from the sale
of the Securities for working capital and general corporate purposes, which may
include the repayment or refinancing of outstanding indebtedness, the financing
of future acquisitions (which may include acquisitions of real properties,
interests therein or real estate-related securities) and the financing of
improvements or expansion of properties. Pending the use thereof, AIMCO and the
AIMCO Operating Partnership intend to invest any net proceeds in short-term,
interest-bearing securities. Neither AIMCO nor the AIMCO Operating Partnership
will receive any proceeds from the registered resale of any Securities pursuant
to this Prospectus.
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RATIO OF EARNINGS TO FIXED CHARGES
The table below reflects AIMCO's ratios of earnings to fixed charges and
ratios of earnings to combined fixed charges and preferred stock dividends for
the following periods: (i) the nine months ended September 30, 1998 and 1997,
(ii) the years ended December 31, 1997, 1996 and 1995, (iii) the period January
10, 1994 to December 31, 1994, (iv) the period January 1, 1994 to July 28, 1994,
and (v) the year ended December 31, 1993. The ratios of earnings to fixed
charges and the ratios of earnings to combined fixed charges and partnership
preferred unit distributions for the AIMCO Operating Partnership are the same as
the ratios of earnings to fixed charges and the ratios of earnings to combined
fixed charges and preferred stock dividends, respectively, for such periods.
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AIMCO
AIMCO PREDECESSORS(1)
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FOR THE FOR THE
PERIOD PERIOD FOR THE
FOR THE NINE JAN. 10, JAN. 1, YEAR
MONTHS ENDED FOR THE YEARS ENDED 1994 TO 1994 TO ENDED
SEPTEMBER 30, DECEMBER 31, DEC. 31, JULY 28, DEC. 31,
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1998 1997 1997 1996 1995 1994 1994(3) 1993
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Ratio of earnings to fixed charges(2).... 1.8:1 1.6:1 1.5:1 1.6:1 2.1:1 5.8:1 N/A 1.2:1
Ratio of earnings to combined fixed
charges and preferred stock
dividends(4)(5)........................ 1.4:1 1.5:1 1.5:1 1.6:1 1.5:1 2.0:1 N/A 1.2:1
</TABLE>
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(1) On July 29, 1994, AIMCO completed its initial public offering of 9,075,000
shares of Class A Common Stock. On such date, AIMCO and Property Asset
Management, L.L.C., and its affiliated companies and PDI Realty Enterprises,
Inc. (collectively, the "AIMCO Predecessors") engaged in a business
combination and consummated a series of related transactions which enabled
AIMCO to continue and to expand the property management and related
businesses of the AIMCO Predecessors.
(2) The ratio of earnings to fixed charges for AIMCO was computed by dividing
earnings by fixed charges. For this purpose, "earnings" consists of income
before minority interest plus fixed charges (other than any interest which
has been capitalized); and "fixed charges" consists of interest expense
(including amortization of loan costs) and interest which has been
capitalized. The ratio of earnings to fixed charges for the AIMCO
Predecessors was computed by dividing earnings by fixed charges. For this
purpose, "earnings" consists of income (loss) before extraordinary items and
income taxes plus fixed charges and "fixed charges" consists of interest
expense (including amortization of loan costs).
(3) The earnings of the AIMCO Predecessors for the period from January 1, 1994
to July 28, 1994 were inadequate to cover fixed charges by $1,463,000.
(4) The ratio of earnings to combined fixed charges and preferred stock
dividends for AIMCO was computed by dividing earnings by the total of fixed
charges and preferred stock dividends. For this purpose, "earnings" consists
of income before minority interest plus fixed charges (other than any
interest which has been capitalized); "fixed charges' consists of interest
expense (including amortization of loan costs) and interest which has been
capitalized; and "preferred stock dividends' consists of the amount of
pre-tax earnings that would be required to cover preferred stock dividend
requirements.
(5) The AIMCO Predecessors did not have any shares of preferred stock
outstanding during the period from January 1, 1993 through July 28, 1994.
2
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DESCRIPTION OF AIMCO DEBT SECURITIES
GENERAL
The following description sets forth certain general terms and provisions
of the AIMCO Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the AIMCO Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the AIMCO Debt Securities so offered will be described in the Prospectus
Supplement relating to such AIMCO Debt Securities.
The AIMCO Debt Securities may be issued, from time to time, in one or more
series, and will constitute either senior AIMCO Debt Securities ("Senior AIMCO
Debt Securities"), senior subordinated AIMCO Debt Securities ("Senior
Subordinated AIMCO Debt Securities") or subordinated AIMCO Debt Securities
("Subordinated AIMCO Debt Securities"). Senior AIMCO Debt Securities may be
issued under an Indenture (the "Senior AIMCO Debt Securities Indenture") to be
entered into between AIMCO and a trustee to be named in the applicable
Prospectus Supplement. The Senior Subordinated AIMCO Debt Securities may be
issued from time to time under an Indenture (the "Senior Subordinated AIMCO Debt
Securities Indenture") to be entered into between AIMCO and a trustee to be
named in the applicable Prospectus Supplement. The Subordinated AIMCO Debt
Securities may be issued from time to time under an Indenture (the "Subordinated
AIMCO Debt Securities Indenture") to be entered into between AIMCO and a trustee
to be named in the applicable Prospectus Supplement. The AIMCO Debt Securities
may be convertible or non-convertible.
The Senior AIMCO Debt Securities Indenture, the Senior Subordinated AIMCO
Debt Securities Indenture, and the Subordinated AIMCO Debt Securities Indenture
are referred to herein individually as an "AIMCO Indenture" and, collectively,
as the "AIMCO Indentures." Forms of the AIMCO Indentures are filed as exhibits
to the Registration Statement of which this Prospectus is a part. The AIMCO
Indentures will be subject to and governed by the Trust Indenture Act of 1939,
as amended (the "TIA"). Capitalized terms used in this section which are not
otherwise defined in this Prospectus shall have the meanings set forth in the
AIMCO Indenture to which they relate. The statements made under this heading
relating to the AIMCO Debt Securities and the AIMCO Indentures are summaries of
the material provisions of the AIMCO Debt Securities and the AIMCO Indentures,
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the AIMCO Indentures and the
AIMCO Debt Securities, including the definitions therein of certain terms.
The AIMCO Debt Securities will be direct, unsecured obligations of AIMCO.
The AIMCO Indentures do not limit the aggregate principal amount of AIMCO Debt
Securities that may be issued thereunder and provide that AIMCO Debt Securities
may be issued thereunder from time to time in one or more series. Under the
AIMCO Indentures, AIMCO will have the ability to issue AIMCO Debt Securities
with terms different from those of AIMCO Debt Securities previously issued,
without the consent of the holders of previously issued series of AIMCO Debt
Securities, in an aggregate principal amount determined by AIMCO.
The applicable Prospectus Supplement or Prospectus Supplements relating to
any Senior Subordinated AIMCO Debt Securities or Subordinated AIMCO Debt
Securities will set forth the aggregate amount of outstanding indebtedness, as
of the most recent practicable date, that by the terms of such AIMCO Debt
Securities would be senior to such AIMCO Debt Securities and any limitation on
the issuance of additional senior indebtedness.
AIMCO Debt Securities may be issued and sold at a discount below their
principal amount ("AIMCO Discount Securities"). Special United States Federal
income tax considerations applicable to AIMCO Debt Securities issued with
original issue discount, including AIMCO Discount Securities, will be described
in more detail in any applicable Prospectus Supplement. Even if AIMCO Debt
Securities are not issued at a discount below their principal amount, such AIMCO
Debt Securities may, for United States Federal income tax purposes, be deemed to
have been issued with "original issue discount" ("OID") because of certain
interest payment characteristics. In addition, special United States Federal tax
considerations or other restrictions or terms applicable to any AIMCO Debt
Securities offered exclusively to United States aliens or
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denominated in a currency other than United States dollars will be set forth in
a Prospectus Supplement relating thereto.
The applicable Prospectus Supplement or Prospectus Supplements will
describe, among other things, the following terms of the AIMCO Debt Securities
offered thereby (the "Offered AIMCO Debt Securities"): (i) the title of the
Offered AIMCO Debt Securities; (ii) any limit on the aggregate principal amount
of the Offered AIMCO Debt Securities; (iii) whether the Offered AIMCO Debt
Securities may be represented initially by an AIMCO Debt Security in temporary
or permanent global form, and if so, the initial Depositary with respect to such
temporary or permanent global AIMCO Debt Security and whether and the
circumstances under which beneficial owners of interests in any such temporary
or permanent global AIMCO Debt Security may exchange such interests for AIMCO
Debt Securities of such series and of like tenor of any authorized form and
denomination; (iv) the price or prices at which the Offered AIMCO Debt
Securities will be issued; (v) the date or dates on which the principal of the
Offered AIMCO Debt Securities is payable or the method of determination thereof;
(vi) the place or places where and the manner in which the principal of and
premium, if any, and interest, if any, on such Offered AIMCO Debt Securities
will be payable and the place or places where such Offered AIMCO Debt Securities
may be presented for transfer and, if applicable, conversion or exchange; (vii)
the rate or rates at which the Offered AIMCO Debt Securities will bear interest,
or the method of calculating such rate or rates, if any, and the date or dates
from which such interest, if any, will accrue; (viii) the dates, if any, on
which any interest on the Offered AIMCO Debt Securities will be payable, and the
regular record date for any interest payable on any Offered AIMCO Debt
Securities; (ix) the right or obligation, if any, of AIMCO to redeem or purchase
AIMCO Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof, the conditions, if any, giving
rise to such right or obligation, and the period or periods within which, and
the price or prices at which and the terms and conditions upon which AIMCO Debt
Securities of the series shall be redeemed or purchased, in whole or part, and
any provisions for the remarketing of such AIMCO Debt Securities; (x) whether
such Offered AIMCO Debt Securities are convertible or exchangeable into other
debt securities of AIMCO or equity securities of AIMCO, and, if so, the terms
and conditions upon which such conversion or exchange will be effected,
including the initial conversion or exchange price or rate and any adjustments
thereto, the conversion or exchange period and other conversion or exchange
provisions; (xi) any terms applicable to such Offered AIMCO Debt Securities
which are AIMCO Discount Securities, including the issue price thereof and the
rate or rates at which original issue discount will accrue; (xii) if other than
the principal amount thereof, the portion of the principal amount of the Offered
AIMCO Debt Securities which will be payable upon declaration or acceleration of
the maturity thereof pursuant to an event of default; (xiii) any special United
States Federal income tax considerations applicable to the Offered AIMCO Debt
Securities; and (xiv) any other terms of the Offered AIMCO Debt Securities not
inconsistent with the provisions of the AIMCO Indenture. The applicable
Prospectus Supplement will also describe the following terms of any series of
Senior Subordinated AIMCO Debt Securities or Subordinated AIMCO Debt Securities
offered hereby in respect of which this Prospectus is being delivered: (a) the
rights, if any, to defer payments of interest on the Senior Subordinated AIMCO
Debt Securities or Subordinated AIMCO Debt Securities of such series by
extending the interest payment period, and the duration of such extensions, and
(b) the subordination terms of the Senior Subordinated AIMCO Debt Securities or
Subordinated AIMCO Debt Securities of such series. Any such Prospectus
Supplement will also describe any special provisions for the payment of
additional amounts with respect to the Offered AIMCO Debt Securities.
Since the operations of AIMCO are currently conducted principally through
its subsidiaries, AIMCO's cash flow and its consequent ability to service debt,
including the AIMCO Debt Securities, will be dependent, in large part, upon the
earnings of its subsidiaries and the distribution of those earnings to AIMCO,
whether by dividends, loans or otherwise. The payment of dividends and the
making of loans and advances to AIMCO by the subsidiaries may be subject to
statutory or contractual restrictions, are contingent upon the earnings of those
subsidiaries and are subject to various business considerations. Any right of
AIMCO to receive assets of any of the subsidiaries upon their liquidation or
reorganization (and the consequent right of the holders of the AIMCO Debt
Securities to participate in those assets) will be effectively subordinated to
the claims of that subsidiary's creditors (including trade creditors), except to
the extent that AIMCO is recognized as a creditor
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of such subsidiary, in which case the claims of AIMCO would still be subordinate
to any security interests in the assets of such subsidiary and any indebtedness
of such subsidiary senior to that held by AIMCO.
CONVERTIBILITY
No series of AIMCO Debt Securities that may be issued and sold pursuant
hereto will be convertible into, or exchangeable for, other securities or
property, except as set forth in the applicable Prospectus Supplement, which
will set forth the terms and conditions upon which such conversion or exchange
may be effected, including the initial conversion or exchange rate and any
adjustments thereto, the conversion or exchange period and any other conversion
or exchange provisions.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The AIMCO Debt Securities of a series may be issued solely as registered
AIMCO Debt Securities. AIMCO Debt Securities of a series may be issuable in
whole or in part in the form of one or more global AIMCO Debt Securities, as
described below under "Global Debt Securities." Unless otherwise indicated in an
applicable Prospectus Supplement, AIMCO Debt Securities will be issuable in
denominations of $1,000 and integral multiples thereof. AIMCO Debt Securities of
any series will be exchangeable for other AIMCO Debt Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor.
AIMCO Debt Securities may be presented for exchange as provided above and,
unless otherwise indicated in an applicable Prospectus Supplement, may be
presented for registration of transfer, at the office or agency of AIMCO
designated as registrar or co-registrar with respect to such series of AIMCO
Debt Securities, without service charge and upon payment of any taxes,
assessments or other governmental charges as described in the AIMCO Indenture.
Such transfer or exchange will be effected on the books of the registrar or any
other transfer agent appointed by AIMCO upon such registrar or transfer agent,
as the case may be, being satisfied with the documents of title and identity of
the person making the request. AIMCO intends to initially appoint the trustee
for the particular series of Offered AIMCO Debt Securities as the registrar for
such Offered AIMCO Debt Securities and the name of any different or additional
registrar designated by AIMCO with respect to the Offered AIMCO Debt Securities
will be included in the Prospectus Supplement relating thereto. If a Prospectus
Supplement refers to any transfer agents (in addition to the registrar)
designated by AIMCO with respect to any series of AIMCO Debt Securities, AIMCO
or the may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent acts,
except that AIMCO will be required to maintain a transfer agent in the Borough
of Manhattan, the City of New York. AIMCO may at any time designate additional
transfer agents with respect to any series of AIMCO Debt Securities.
In the event of any partial redemption of AIMCO Debt Securities of any
series, AIMCO will not be required to (i) issue, register the transfer of or
exchange AIMCO Debt Securities of that series during a period beginning at the
opening of business 15 days before any selection of AIMCO Debt Securities of
that series to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption; or (ii) register the transfer of
or exchange any AIMCO Debt Security, or portion thereof, called for redemption,
except the unredeemed portion of any AIMCO Debt Security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, and interest, if any, on, AIMCO Debt Securities will be made at
the office of such paying agent or paying agents as AIMCO may designate from
time to time, except that, at the option of AIMCO, payment of principal or
interest may be made by check or by wire transfer to an account maintained by
the payee. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of any installment of interest on AIMCO Debt Securities will be made to
the person in whose name such AIMCO Debt Security is registered at the close of
business on the regular record date for such interest.
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Unless otherwise indicated in an applicable Prospectus Supplement, the
trustee for the Offered AIMCO Debt Securities will be designated as AIMCO's sole
paying agent for payments with respect to the Offered AIMCO Debt Securities. Any
other paying agents initially designated by AIMCO for the Offered AIMCO Debt
Securities will be named in an applicable Prospectus Supplement. AIMCO may at
any time designate additional paying agents or rescind the designation of any
paying agent or approve a change in the office through which any paying agent
acts, except that AIMCO will be required to maintain a paying agent in the
Borough of Manhattan, The City of New York.
All moneys paid by AIMCO to a paying agent for the payment of principal of,
or interest, if any, on, any AIMCO Debt Security which remains unclaimed at the
end of two years after such principal or interest shall have become due and
payable will be repaid to AIMCO, and the holder of such AIMCO Debt Security or
any coupon will thereafter look only to AIMCO for payment thereof.
GLOBAL DEBT SECURITIES
The AIMCO Debt Securities of a series may be issued in whole or in part in
global form. An AIMCO Debt Security in global form will be deposited with, or on
behalf of, a depositary, which will be identified in the applicable Prospectus
Supplement. A global AIMCO Debt Security may be issued only in registered form
and in either temporary or permanent form. An AIMCO Debt Security in global form
may not be transferred except as a whole to the depositary for such AIMCO Debt
Security or to a nominee or successor of such depositary. If any AIMCO Debt
Securities of a series are issuable in global form, the applicable Prospectus
Supplement will describe the circumstances, if any, under which beneficial
owners of interests in any such global AIMCO Debt Security may exchange such
interests for definitive AIMCO Debt Securities of such series and of like tenor
and principal amount in any authorized form and denomination, the manner of
payment of principal of and interest, if any, on any such global AIMCO Debt
Security and the specific terms of the depositary arrangement with respect to
any such global AIMCO Debt Security.
MERGERS AND SALES OF ASSETS
AIMCO may not consolidate with or merge into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to
another person, unless, among other things, (i) the resulting, surviving or
transferee person (if other than AIMCO) is organized and existing under the laws
of the United States, any state thereof or the District of Columbia and such
person expressly assumes all obligations of AIMCO under the AIMCO Debt
Securities and the AIMCO Indenture, and (ii) immediately after giving effect to
such transaction, no default or event of default shall have occurred or be
continuing under the AIMCO Indenture. Upon the assumption of AIMCO's obligations
by a person to whom such properties or assets are conveyed, transferred or
leased, subject to certain exceptions, AIMCO shall be discharged from all
obligations under the AIMCO Debt Securities and the AIMCO Indenture.
EVENTS OF DEFAULT
Each AIMCO Indenture provides that, if an Event of Default specified
therein shall have occurred and be continuing, with respect to each series of
the AIMCO Debt Securities outstanding thereunder individually, the trustee or
the holders of not less than 25% in aggregate principal amount of the
outstanding AIMCO Debt Securities of such series may declare the principal
amount (or, if any of the AIMCO Debt Securities of such series are AIMCO
Discount Securities, such portion of the principal amount of such AIMCO Debt
Securities as may be specified by the terms thereof) of the AIMCO Debt
Securities of such series to be immediately due and payable. Under certain
circumstances, the holders of a majority in aggregate principal amount of the
outstanding AIMCO Debt Securities of such series may rescind such a declaration.
Under each AIMCO Indenture, an event of default is defined as, with respect
to each series of AIMCO Debt Securities outstanding thereunder individually, any
of the following: (i) default in payment of the principal of any AIMCO Debt
Securities of such series; (ii) default in payment of any interest on any AIMCO
Debt Securities of such series when due, continuing for 30 days (or 60 days, in
the case of Senior Subordinated AIMCO Debt Securities or Subordinated AIMCO Debt
Securities); (iii) default by AIMCO
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in compliance with other agreements in the AIMCO Debt Securities of such series
or the AIMCO Indenture relating to the AIMCO Debt Securities of such series upon
the receipt by AIMCO of notice of such default given by the trustee for such
AIMCO Debt Securities or the holders of at least 25% in aggregate principal
amount of the outstanding AIMCO Debt Securities of such series and AIMCO's
failure to cure such default within 60 days after receipt by AIMCO of such
notice; (iv) certain events of bankruptcy or insolvency; and (v) any other event
of default set forth in an applicable Prospectus Supplement with respect to the
AIMCO Debt Securities of such series.
The trustee shall give notice to holders of the AIMCO Debt Securities of
any continuing default known to the trustee within 90 days after the occurrence
thereof; provided, that the trustee may withhold such notice, as to any default
other than a payment default, if it determines in good faith that withholding
the notice is in the interests of the holders.
The holders of a majority in principal amount of the outstanding AIMCO Debt
Securities of any series may 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 AIMCO Debt Securities of such
series; provided that such direction shall not be in conflict with any law or
the Indenture and subject to certain other limitations. Before proceeding to
exercise any right or power under the AIMCO Indenture at the direction of such
holders, the trustee shall be entitled to receive from such holders reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in complying with any such direction.
With respect to each series of AIMCO Debt Securities, no holder will have any
right to pursue any remedy with respect to the AIMCO Indenture or such AIMCO
Debt Securities, unless (i) such holder shall have previously given the trustee
written notice of a continuing event of default with respect to the AIMCO Debt
Securities of such series; (ii) the holders of at least 25% in aggregate
principal amount of the outstanding AIMCO Debt Securities of such series shall
have made a written request to the trustee to pursue such remedy; (iii) such
holder or holders have offered to the trustee reasonable indemnity satisfactory
to the trustee; (iv) the holders of a majority in aggregate principal amount of
the outstanding AIMCO Debt Securities of such series have not given the trustee
a direction inconsistent with such request within 60 days after receipt of such
request; and (v) the trustee shall have failed to comply with the request within
such 60-day period.
Notwithstanding the foregoing, the right of any holder of any AIMCO Debt
Securities to receive payment of the principal of and interest in respect of
such AIMCO Debt Securities on the date specified in such AIMCO Debt Securities
as the fixed date on which an amount equal to the principal of such AIMCO Debt
Securities or an installment of principal thereof or interest thereon is due and
payable (the "stated maturity" or "stated maturities") or to institute suit for
the enforcement of any such payments shall not be impaired or adversely affected
without such holder's consent. The holders of at least a majority in aggregate
principal amount of the outstanding AIMCO Debt Securities of any series may
waive an existing default with respect to such series and its consequences,
other than (i) any default in any payment of the principal of, or interest on,
any AIMCO Debt Securities of such series or (ii) any default in respect of
certain covenants or provisions in the AIMCO Indenture which may not be modified
without the consent of the holder of each of the outstanding AIMCO Debt
Securities of such series affected as described in "Modification and Waiver,"
below.
Each AIMCO Indenture provides that AIMCO shall deliver to the trustee
within 120 days after the end of each fiscal year of AIMCO an officers'
certificate stating whether or not the signers know of any default that occurred
during such period.
MODIFICATION AND WAIVER
AIMCO and the trustee may execute a supplemental indenture without the
consent of the holders of the AIMCO Debt Securities (i) to add to the covenants,
agreements and obligations of AIMCO for the benefit of the holders of all the
AIMCO Debt Securities of any series or to surrender any right or power conferred
in the AIMCO Indenture upon AIMCO; (ii) to evidence the succession of another
corporation, partnership or other Person to AIMCO and the assumption by such
corporation, partnership or other Person of the obligations of
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AIMCO under the AIMCO Indenture and the AIMCO Debt Securities; (iii) to
establish the form or terms of AIMCO Debt Securities of any series as permitted
by the AIMCO Indenture; (iv) to provide for the acceptance of appointment under
the AIMCO Indenture of a successor trustee with respect to the AIMCO Debt
Securities of one or more series and to add to or change any provisions of the
AIMCO Indenture as shall be necessary to provide for or facilitate the
administration of the trusts by more than one trustee; (v) to cure any
ambiguity, defect or inconsistency; (vi) to add to, change or eliminate any
provisions (which addition, change or elimination may apply to one or more
series of AIMCO Debt Securities), provided that any such addition, change or
elimination does not (a) apply to any AIMCO Debt Securities of any series
created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision or (b) modify the rights of the holder of any
such AIMCO Debt Securities with respect to such provision; (vii) to secure the
AIMCO Debt Securities; or (viii) to make any other change that does not
adversely affect the rights of any holder of AIMCO Debt Securities.
Each AIMCO Indenture provides that, with the consent of the holders of not
less than a majority in aggregate principal amount of the outstanding AIMCO Debt
Securities of the series affected by such supplemental indenture, AIMCO and the
trustee may also execute a supplemental indenture to add provisions to, or
change in any manner or eliminate any provisions of, the AIMCO Indenture with
respect to such series of AIMCO Debt Securities or modify in any manner the
rights of the holders of the AIMCO Debt Securities of such series; provided that
no such supplemental indenture will, without the consent of the holder of each
such outstanding AIMCO Debt Security affected thereby (i) change the stated
maturity of the principal of, or any installment of principal or interest on,
any such AIMCO Debt Security or any premium payable upon redemption or
repurchase thereof, or reduce the amount of principal of any AIMCO Debt Security
that is an AIMCO Discount Security and that would be due and payable upon
declaration of acceleration of maturity thereof; (ii) reduce the principal
amount of, or the rate of interest on, any such AIMCO Debt Security; (iii)
change the place or currency of payment of principal or interest, if any, on any
such AIMCO Debt Security; (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any such AIMCO Debt Security;
(v) reduce the above-stated percentage of holders of AIMCO Debt Securities of
any series necessary to modify or amend the AIMCO Indenture for such AIMCO Debt
Securities; (vi) modify the foregoing requirements or reduce the percentage in
principal amount of outstanding AIMCO Debt Securities of any series necessary to
waive any covenant or past default; or (vii) in the case of Senior Subordinated
AIMCO Debt Securities or Subordinated AIMCO Debt Securities, amend or modify any
of the provisions of such AIMCO Indenture relating to subordination of the AIMCO
Debt Securities in any manner adverse to the holders of such AIMCO Debt
Securities. Holders of not less than a majority in principal amount of the
outstanding AIMCO Debt Securities of any series may waive certain past defaults
and may waive compliance by AIMCO with certain of the restrictive covenants
described above with respect to the AIMCO Debt Securities of such series.
DISCHARGE AND DEFEASANCE
Unless otherwise indicated in an applicable Prospectus Supplement, each
AIMCO Indenture provides that AIMCO may satisfy and discharge obligations
thereunder with respect to the AIMCO Debt Securities of any series by delivering
to the trustee for cancellation all outstanding AIMCO Debt Securities of such
series or depositing with the trustee, after such outstanding AIMCO Debt
Securities have become due and payable, cash sufficient to pay at stated
maturity all of the outstanding AIMCO Debt Securities of such series and paying
all other sums payable under the AIMCO Indenture with respect to such series.
In addition, unless otherwise indicated in an applicable Prospectus
Supplement, each AIMCO Indenture provides that: AIMCO, (a) shall be discharged
from its obligations in respect of the AIMCO Debt Securities of such series
("defeasance and discharge"), or (b) may cease to comply with certain
restrictive covenants ("covenant defeasance"), including those described under
"Mergers and Sales of Assets," and any such omission shall not be an event of
default with respect to the AIMCO Debt Securities of such series, in each case,
at any time prior to the stated maturity or redemption thereof, when AIMCO has
irrevocably deposited with the trustee, in trust, (i) sufficient funds to pay
the principal of and interest to stated maturity (or redemption) on, the AIMCO
Debt Securities of such series, or (ii) such amount of direct obligations of, or
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obligations the principal of (and premium, if any) and interest on which are
fully guaranteed by, the government of the United States and which are not
subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the principal of (and
premium, if any) and interest to stated maturity (or redemption) on, the AIMCO
Debt Securities of such series. Upon such defeasance and discharge, the holders
of the AIMCO Debt Securities of such series shall no longer be entitled to the
benefits of the AIMCO Indenture, except for the purposes of registration of
transfer and exchange of the AIMCO Debt Securities of such series and
replacement of lost, stolen or mutilated AIMCO Debt Securities and shall look
only to such deposited funds or obligations for payment. In addition, under
present law such defeasance and discharge is likely to be treated as a
redemption of the AIMCO Debt Securities of that series prior to maturity in
exchange for such money or United States government obligations. In that event,
each holder would generally recognize, at the time of defeasance, gain or loss
measured by the difference between the amount of such money and the fair market
value of the United States government obligations deemed received and such
holder's tax basis in the AIMCO Debt Securities deemed surrendered. Thereafter,
each holder would likely be treated as if such holder held an undivided interest
in the money (or investments made therewith) or the United States government
obligations (or investments made with interest received therefrom), would
generally be subject to tax liability in respect of interest income and/or
original issue discount, if applicable, thereon and would recognize any gain or
loss upon any disposition, including redemption, of such assets or obligations.
Although tax might be owed, the holder of a defeased AIMCO Debt Security would
not receive any cash until the maturity or an earlier redemption of the AIMCO
Debt Security (except for current payments of interest on the AIMCO Debt
Securities of that issue). Such tax treatment could affect the purchase price
that a holder would receive upon the sale of the AIMCO Debt Securities. Holders
are urged to consult their own tax advisors with respect to the tax treatment of
defeasance of any AIMCO Debt Securities.
THE TRUSTEES
The trustee for any AIMCO Debt Securities will be named in the applicable
Prospectus Supplement. Each trustee will be permitted to engage in other
transactions with AIMCO and each of its subsidiaries; however, if a trustee
acquires any conflicting interest, it must eliminate such conflict or resign.
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DESCRIPTION OF OP DEBT SECURITIES
GENERAL
The following description sets forth certain general terms and provisions
of the OP Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the OP Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the OP
Debt Securities so offered will be described in the Prospectus Supplement
relating to such OP Debt Securities.
The OP Debt Securities may be issued by the AIMCO Operating Partnership,
from time to time, in one or more series, and will constitute either senior OP
Debt Securities ("Senior OP Debt Securities"), senior subordinated OP Debt
Securities ("Senior Subordinated OP Debt Securities") or subordinated OP Debt
Securities ("Subordinated OP Debt Securities"). Senior OP Debt Securities may be
issued under an Indenture (the "Senior OP Debt Securities Indenture") to be
entered into among the AIMCO Operating Partnership, AIMCO (as guarantor, as
applicable) and a trustee to be named in the applicable Prospectus Supplement.
The Senior Subordinated OP Debt Securities may be issued from time to time under
an Indenture (the "Senior Subordinated OP Debt Securities Indenture") to be
entered into among the AIMCO Operating Partnership, AIMCO (as guarantor, as
applicable) and a trustee to be named in the applicable Prospectus Supplement.
The Subordinated OP Debt Securities may be issued from time to time under an
Indenture (the "Subordinated OP Debt Securities Indenture") to be entered into
among the AIMCO Operating Partnership, AIMCO (as guarantor, as applicable) and a
trustee to be named in the applicable Prospectus Supplement. The OP Debt
Securities will be non-convertible. AIMCO will fully and unconditionally
guarantee the payment obligations on all OP Debt Securities unless, at the time
of sale, at least one nationally recognized statistical rating organization (as
that term is used in Rule 15c 3-1(c)(2)(vi)(F) under the Securities Exchange Act
of 1934) has rated such OP Debt Securities in one of its generic rating
categories which signifies investment grade.
The Senior OP Debt Securities Indenture, the Senior Subordinated OP Debt
Securities Indenture, and the Subordinated OP Debt Securities Indenture are
referred to herein individually as an "OP Indenture" and, collectively, as the
"OP Indentures." Forms of the OP Indentures are filed as exhibits to the
Registration Statement of which this Prospectus is a part. The OP Indentures
will be subject to and governed by the TIA. Capitalized terms used in this
section which are not otherwise defined in this Prospectus shall have the
meanings set forth in the OP Indenture to which they relate. The statements made
under this heading relating to the OP Debt Securities and the OP Indentures are
summaries of the material provisions of the OP Debt Securities and the OP
Indentures, do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the OP Indentures and
the OP Debt Securities, including the definitions therein of certain terms.
The OP Debt Securities will be direct, unsecured obligations of the AIMCO
Operating Partnership. The OP Indentures do not limit the aggregate principal
amount of OP Debt Securities that may be issued thereunder and provide that OP
Debt Securities may be issued thereunder from time to time in one or more
series. Under the OP Indentures, the AIMCO Operating Partnership will have the
ability to issue OP Debt Securities with terms different from those of OP Debt
Securities previously issued, without the consent of the holders of previously
issued series of OP Debt Securities, in an aggregate principal amount determined
by the AIMCO Operating Partnership.
The applicable Prospectus Supplement or Prospectus Supplements relating to
any Senior Subordinated OP Debt Securities or Subordinated OP Debt Securities
will set forth the aggregate amount of outstanding indebtedness, as of the most
recent practicable date, that by the terms of such OP Debt Securities would be
senior to such OP Debt Securities and any limitation on the issuance of
additional senior indebtedness.
OP Debt Securities may be issued and sold at a discount below their
principal amount ("OP Discount Securities"). Special United States Federal
income tax considerations applicable to OP Debt Securities issued with original
issue discount, including OP Discount Securities, will be described in more
detail in any applicable Prospectus Supplement. Even if OP Debt Securities are
not issued at a discount below their principal amount, such OP Debt Securities
may, for United States Federal income tax purposes, be deemed to
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have been issued with OID because of certain interest payment characteristics.
In addition, special United States Federal tax considerations or other
restrictions or terms applicable to any OP Debt Securities offered exclusively
to United States aliens or denominated in a currency other than United States
dollars will be set forth in a Prospectus Supplement relating thereto.
The applicable Prospectus Supplement or Prospectus Supplements will
describe, among other things, the following terms of the OP Debt Securities
offered thereby (the "Offered OP Debt Securities"): (i) the title of the Offered
OP Debt Securities; (ii) any limit on the aggregate principal amount of the
Offered OP Debt Securities; (iii) whether the Offered OP Debt Securities may be
represented initially by an OP Debt Security in temporary or permanent global
form, and if so, the initial Depositary with respect to such temporary or
permanent global OP Debt Security and whether and the circumstances under which
beneficial owners of interests in any such temporary or permanent global OP Debt
Security may exchange such interests for OP Debt Securities of such series and
of like tenor of any authorized form and denomination; (iv) the price or prices
at which the Offered OP Debt Securities will be issued; (v) the date or dates on
which the principal of the Offered OP Debt Securities is payable or the method
of determination thereof; (vi) the place or places where and the manner in which
the principal of and premium, if any, and interest, if any, on such Offered OP
Debt Securities will be payable and the place or places where such Offered OP
Debt Securities may be presented for transfer; (vii) the rate or rates at which
the Offered OP Debt Securities will bear interest, or the method of calculating
such rate or rates, if any, and the date or dates from which such interest, if
any, will accrue; (viii) the dates, if any, on which any interest on the Offered
OP Debt Securities will be payable, and the regular record date for any interest
payable on any Offered OP Debt Securities; (ix) the right or obligation, if any,
of the AIMCO Operating Partnership to redeem or purchase OP Debt Securities of
the series pursuant to any sinking fund or analogous provisions or at the option
of a holder thereof, the conditions, if any, giving rise to such right or
obligation, and the period or periods within which, and the price or prices at
which and the terms and conditions upon which OP Debt Securities of the series
shall be redeemed or purchased, in whole or part, and any provisions for the
remarketing of such OP Debt Securities; (x) any terms applicable to such Offered
OP Debt Securities which are OP Discount Securities, including the issue price
thereof and the rate or rates at which original issue discount will accrue; (xi)
if other than the principal amount thereof, the portion of the principal amount
of the Offered OP Debt Securities which will be payable upon declaration or
acceleration of the maturity thereof pursuant to an event of default; (xii) any
special United States Federal income tax considerations applicable to the
Offered OP Debt Securities; (xiii) whether the Offered OP Debt Securities will
be guaranteed by AIMCO and the terms of any such Guarantee; and (xiv) any other
terms of the Offered OP Debt Securities not inconsistent with the provisions of
the OP Indenture. The applicable Prospectus Supplement will also describe the
following terms of any series of Senior Subordinated OP Debt Securities or
Subordinated OP Debt Securities offered hereby in respect of which this
Prospectus is being delivered: (a) the rights, if any, to defer payments of
interest on the Senior Subordinated OP Debt Securities or Subordinated OP Debt
Securities of such series by extending the interest payment period, and the
duration of such extensions, and (b) the subordination terms of the Senior
Subordinated OP Debt Securities or Subordinated OP Debt Securities of such
series. Any such Prospectus Supplement will also describe any special provisions
for the payment of additional amounts with respect to the Offered OP Debt
Securities.
Since the operations of the AIMCO Operating Partnership is currently
conducted principally through its respective subsidiaries, the AIMCO Operating
Partnership's cash flow and its consequent ability to service debt, including
the OP Debt Securities, will be dependent, in large part, upon the earnings of
the subsidiaries and the distribution of those earnings to the AIMCO Operating
Partnership, whether by dividends, loans or otherwise. The payment of dividends
and the making of loans and advances to the AIMCO Operating Partnership by its
subsidiaries may be subject to statutory or contractual restrictions, are
contingent upon the earnings of those subsidiaries and are subject to various
business considerations. Any right of the AIMCO Operating Partnership to receive
assets of any of its subsidiaries upon their liquidation or reorganization (and
the consequent right of the holders of the OP Debt Securities to participate in
those assets) will be effectively subordinated to the claims of that
subsidiary's creditors (including trade creditors), except to the extent that
the AIMCO Operating Partnership is recognized as a creditor of such subsidiary,
in which case the claims of
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the AIMCO Operating Partnership would still be subordinate to any security
interests in the assets of such subsidiary and any indebtedness of such
subsidiary senior to that held by the AIMCO Operating Partnership.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The OP Debt Securities of a series may be issued solely as registered OP
Debt Securities. OP Debt Securities of a series may be issuable in whole or in
part in the form of one or more global OP Debt Securities, as described below
under "Global Debt Securities." Unless otherwise indicated in an applicable
Prospectus Supplement, OP Debt Securities will be issuable in denominations of
$1,000 and integral multiples thereof. OP Debt Securities of any series will be
exchangeable for other OP Debt Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor.
OP Debt Securities may be presented for exchange as provided above and,
unless otherwise indicated in an applicable Prospectus Supplement, may be
presented for registration of transfer, at the office or agency of the AIMCO
Operating Partnership designated as registrar or co-registrar with respect to
such series of OP Debt Securities, without service charge and upon payment of
any taxes, assessments or other governmental charges as described in the OP
Indenture. Such transfer or exchange will be effected on the books of the
registrar or any other transfer agent appointed by the AIMCO Operating
Partnership upon such registrar or transfer agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. The AIMCO Operating Partnership intends to initially appoint the
trustee for the particular series of Offered OP Debt Securities as the registrar
for such Offered OP Debt Securities and the name of any different or additional
registrar designated by the AIMCO Operating Partnership with respect to the
Offered OP Debt Securities will be included in the Prospectus Supplement
relating thereto. If a Prospectus Supplement refers to any transfer agents (in
addition to the registrar) designated by the AIMCO Operating Partnership with
respect to any series of OP Debt Securities, the AIMCO Operating Partnership may
at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except that
the AIMCO Operating Partnership will be required to maintain a transfer agent in
the Borough of Manhattan, the City of New York. The AIMCO Operating Partnership
may at any time designate additional transfer agents with respect to any series
of OP Debt Securities.
In the event of any partial redemption of OP Debt Securities of any series,
the AIMCO Operating Partnership will not be required to (i) issue, register the
transfer of or exchange OP Debt Securities of that series during a period
beginning at the opening of business 15 days before any selection of OP Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; or (ii) register the
transfer of or exchange any OP Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any OP Debt Security being redeemed
in part.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, and interest, if any, on, OP Debt Securities will be made at
the office of such paying agent or paying agents as the AIMCO Operating
Partnership may designate from time to time, except that, at the option of the
AIMCO Operating Partnership, payment of principal or interest may be made by
check or by wire transfer to an account maintained by the payee. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of any
installment of interest on OP Debt Securities will be made to the person in
whose name such OP Debt Security is registered at the close of business on the
regular record date for such interest.
Unless otherwise indicated in an applicable Prospectus Supplement, the
trustee for the Offered OP Debt Securities will be designated as the AIMCO
Operating Partnership's sole paying agent for payments with respect to the
Offered OP Debt Securities. Any other paying agents initially designated by the
AIMCO Operating Partnership for the Offered OP Debt Securities will be named in
an applicable Prospectus Supplement. The AIMCO Operating Partnership may at any
time designate additional paying agents or rescind the designation of any paying
agent or approve a change in the office through which any paying agent
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acts, except that the AIMCO Operating Partnership will be required to maintain a
paying agent in the Borough of Manhattan, The City of New York.
All moneys paid by the AIMCO Operating Partnership to a paying agent for
the payment of principal of, or interest, if any, on, any OP Debt Security which
remains unclaimed at the end of two years after such principal or interest shall
have become due and payable will be repaid to the AIMCO Operating Partnership,
and the holder of such OP Debt Security or any coupon will thereafter look only
to the AIMCO Operating Partnership for payment thereof.
GUARANTEES
If the AIMCO Operating Partnership issues any OP Debt Securities that are
rated below investment grade at the time of issuance, AIMCO will fully and
unconditionally guarantee, on a senior or subordinated basis, the due and
punctual payment of principal of, premium, if any, and interest on such OP Debt
Securities, and the due and punctual payment of any sinking fund payments
thereon, when and as the same shall become due and payable, whether at a
maturity date, by declaration of acceleration, call for redemption or otherwise.
The applicability and terms of any such Guarantees relating to a series of OP
Debt Securities will be set forth in the Prospectus Supplement relating to such
OP Debt Securities.
GLOBAL DEBT SECURITIES
The OP Debt Securities of a series may be issued in whole or in part in
global form. An OP Debt Security in global form will be deposited with, or on
behalf of, a depositary, which will be identified in the applicable Prospectus
Supplement. A global OP Debt Security may be issued only in registered form and
in either temporary or permanent form. An OP Debt Security in global form may
not be transferred except as a whole to the depositary for such OP Debt Security
or to a nominee or successor of such depositary. If any OP Debt Securities of a
series are issuable in global form, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of interests
in any such global OP Debt Security may exchange such interests for definitive
OP Debt Securities of such series and of like tenor and principal amount in any
authorized form and denomination, the manner of payment of principal of and
interest, if any, on any such global OP Debt Security and the specific terms of
the depositary arrangement with respect to any such global OP Debt Security.
MERGERS AND SALES OF ASSETS
The AIMCO Operating Partnership may not consolidate with or merge into any
other person or convey, transfer or lease its properties and assets
substantially as an entirety to another person, unless, among other things, (i)
the resulting, surviving or transferee person (if other than the AIMCO Operating
Partnership) is organized and existing under the laws of the United States, any
state thereof or the District of Columbia and such person expressly assumes all
obligations of the AIMCO Operating Partnership under the OP Debt Securities and
the OP Indenture, and (ii) immediately after giving effect to such transaction,
no default or event of default shall have occurred or be continuing under the OP
Indenture. Upon the assumption of the AIMCO Operating Partnership's obligations
by a person to whom such properties or assets are conveyed, transferred or
leased, subject to certain exceptions, the AIMCO Operating Partnership shall be
discharged from all obligations under the OP Debt Securities and the OP
Indenture.
EVENTS OF DEFAULT
Each OP Indenture provides that, if an Event of Default specified therein
shall have occurred and be continuing, with respect to each series of the OP
Debt Securities outstanding thereunder individually, the trustee or the holders
of not less than 25% in aggregate principal amount of the outstanding OP Debt
Securities of such series may declare the principal amount (or, if any of the OP
Debt Securities of such series are OP Discount Securities, such portion of the
principal amount of such OP Debt Securities as may be specified by the terms
thereof) of the OP Debt Securities of such series to be immediately due and
payable.
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Under certain circumstances, the holders of a majority in aggregate principal
amount of the outstanding OP Debt Securities of such series may rescind such a
declaration.
Under each OP Indenture, an event of default is defined as, with respect to
each series of OP Debt Securities outstanding thereunder individually, any of
the following: (i) default in payment of the principal of any OP Debt Securities
of such series; (ii) default in payment of any interest on any OP Debt
Securities of such series when due, continuing for 30 days (or 60 days, in the
case of Senior Subordinated OP Debt Securities or Subordinated OP Debt
Securities); (iii) default by the AIMCO Operating Partnership in compliance with
its other agreements in the OP Debt Securities of such series (including, in the
case of AIMCO, any related Guarantee) or the OP Indenture relating to the OP
Debt Securities of such series (including, in the case of AIMCO, any related
Guarantee) upon the receipt by the AIMCO Operating Partnership of notice of such
default given by the trustee for such OP Debt Securities or the holders of at
least 25% in aggregate principal amount of the outstanding OP Debt Securities of
such series and the AIMCO Operating Partnership's failure to cure such default
within 60 days after receipt by the AIMCO Operating Partnership of such notice;
(iv) certain events of bankruptcy or insolvency; and (v) any other event of
default set forth in an applicable Prospectus Supplement with respect to the OP
Debt Securities of such series.
The trustee shall give notice to holders of the OP Debt Securities of any
continuing default known to the trustee within 90 days after the occurrence
thereof; provided, that the trustee may withhold such notice, as to any default
other than a payment default, if it determines in good faith that withholding
the notice is in the interests of the holders.
The holders of a majority in principal amount of the outstanding OP Debt
Securities of any series may 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 OP Debt Securities of such
series; provided that such direction shall not be in conflict with any law or
the OP Indenture and subject to certain other limitations. Before proceeding to
exercise any right or power under the OP Indenture at the direction of such
holders, the trustee shall be entitled to receive from such holders reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in complying with any such direction.
With respect to each series of OP Debt Securities, no holder will have any right
to pursue any remedy with respect to the OP Indenture or such OP Debt
Securities, unless (i) such holder shall have previously given the trustee
written notice of a continuing event of default with respect to the OP Debt
Securities of such series; (ii) the holders of at least 25% in aggregate
principal amount of the outstanding OP Debt Securities of such series shall have
made a written request to the trustee to pursue such remedy; (iii) such holder
or holders have offered to the trustee reasonable indemnity satisfactory to the
trustee; (iv) the holders of a majority in aggregate principal amount of the
outstanding OP Debt Securities of such series have not given the trustee a
direction inconsistent with such request within 60 days after receipt of such
request; and (v) the trustee shall have failed to comply with the request within
such 60-day period.
Notwithstanding the foregoing, the right of any holder of any OP Debt
Securities to receive payment of the principal of and interest in respect of
such OP Debt Securities on the date specified in such OP Debt Securities as the
fixed date on which an amount equal to the principal of such OP Debt Securities
or an installment of principal thereof or interest thereon is due and payable
(the "stated maturity" or "stated maturities") or to institute suit for the
enforcement of any such payments shall not be impaired or adversely affected
without such holder's consent. The holders of at least a majority in aggregate
principal amount of the outstanding OP Debt Securities of any series may waive
an existing default with respect to such series and its consequences, other than
(i) any default in any payment of the principal of, or interest on, any OP Debt
Securities of such series or (ii) any default in respect of certain covenants or
provisions in the OP Indenture which may not be modified without the consent of
the holder of each of the outstanding OP Debt Securities of such series affected
as described in "Modification and Waiver," below.
Each OP Indenture provides that the AIMCO Operating Partnership shall
deliver to the trustee within 120 days after the end of each fiscal year of the
AIMCO Operating Partnership an officers' certificate stating whether or not the
signers know of any default that occurred during such period.
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MODIFICATION AND WAIVER
The AIMCO Operating Partnership and the trustee may execute a supplemental
indenture without the consent of the holders of the OP Debt Securities (i) to
add to the covenants, agreements and obligations of the AIMCO Operating
Partnership for the benefit of the holders of all the OP Debt Securities of any
series or to surrender any right or power conferred in the OP Indenture upon the
AIMCO Operating Partnership; (ii) to evidence the succession of another
corporation, partnership or other Person to the AIMCO Operating Partnership and
the assumption by such corporation, partnership or other Person of the
obligations of the AIMCO Operating Partnership, under the OP Indenture and the
OP Debt Securities; (iii) to establish the form or terms of OP Debt Securities
of any series as permitted by the OP Indenture; (iv) to provide for the
acceptance of appointment under the OP Indenture of a successor trustee with
respect to the OP Debt Securities of one or more series and to add to or change
any provisions of the OP Indenture as shall be necessary to provide for or
facilitate the administration of the trusts by more than one trustee; (v) to
cure any ambiguity, defect or inconsistency; (vi) to add to, change or eliminate
any provisions (which addition, change or elimination may apply to one or more
series of OP Debt Securities), provided that any such addition, change or
elimination does not (a) apply to any OP Debt Securities of any series created
prior to the execution of such supplemental indenture that is entitled to the
benefit of such provision or (b) modify the rights of the holder of any such OP
Debt Securities with respect to such provision; (vii) to secure the OP Debt
Securities; or (viii) to make any other change that does not adversely affect
the rights of any holder of OP Debt Securities.
Each OP Indenture provides that, with the consent of the holders of not
less than a majority in aggregate principal amount of the outstanding OP Debt
Securities of the series affected by such supplemental indenture, the AIMCO
Operating Partnership and the Trustee may also execute a supplemental indenture
to add provisions to, or change in any manner or eliminate any provisions of,
the OP Indenture with respect to such series of OP Debt Securities or modify in
any manner the rights of the holders of the OP Debt Securities of such series;
provided that no such supplemental indenture will, without the consent of the
holder of each such outstanding OP Debt Security affected thereby (i) change the
stated maturity of the principal of, or any installment of principal or interest
on, any such OP Debt Security or any premium payable upon redemption or
repurchase thereof, or reduce the amount of principal of any OP Debt Security
that is an OP Discount Security and that would be due and payable upon
declaration of acceleration of maturity thereof; (ii) reduce the principal
amount of, or the rate of interest on, any such OP Debt Security; (iii) change
the place or currency of payment of principal or interest, if any, on any such
OP Debt Security; (iv) impair the right to institute suit for the enforcement of
any payment on or with respect to any such OP Debt Security; (v) reduce the
above-stated percentage of holders of OP Debt Securities of any series necessary
to modify or amend the OP Indenture for such OP Debt Securities; (vi) modify the
foregoing requirements or reduce the percentage in principal amount of
outstanding OP Debt Securities of any series necessary to waive any covenant or
past default; or (vii) in the case of Senior Subordinated OP Debt Securities or
Subordinated OP Debt Securities, amend or modify any of the provisions of such
OP Indenture relating to subordination of the OP Debt Securities in any manner
adverse to the holders of such OP Debt Securities. Holders of not less than a
majority in principal amount of the outstanding OP Debt Securities of any series
may waive certain past defaults and may waive compliance by the AIMCO Operating
Partnership with certain of the restrictive covenants described above with
respect to the OP Debt Securities of such series.
DISCHARGE AND DEFEASANCE
Unless otherwise indicated in an applicable Prospectus Supplement, each OP
Indenture provides that the AIMCO Operating Partnership may satisfy and
discharge obligations thereunder with respect to the OP Debt Securities of any
series by delivering to the trustee for cancellation all outstanding OP Debt
Securities of such series or depositing with the trustee, after such outstanding
OP Debt Securities have become due and payable, cash sufficient to pay at stated
maturity all of the outstanding OP Debt Securities of such series and paying all
other sums payable under the OP Indenture with respect to such series.
In addition, unless otherwise indicated in an applicable Prospectus
Supplement, each OP Indenture provides that: the AIMCO Operating Partnership (a)
shall be discharged from its obligations in respect of the
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OP Debt Securities of such series ("defeasance and discharge"), or (b) may cease
to comply with certain restrictive covenants ("covenant defeasance"), including
those described under "Mergers and Sales of Assets," and any such omission shall
not be an event of default with respect to the OP Debt Securities of such
series, in each case, at any time prior to the stated maturity or redemption
thereof, when the AIMCO Operating Partnership has irrevocably deposited with the
trustee, in trust, (i) sufficient funds to pay the principal of and interest to
stated maturity (or redemption) on, the OP Debt Securities of such series, or
(ii) such amount of direct obligations of, or obligations the principal of (and
premium, if any) and interest on which are fully guaranteed by, the government
of the United States and which are not subject to prepayment, redemption or
call, as will, together with the predetermined and certain income to accrue
thereon without consideration of any reinvestment thereof, be sufficient to pay
when due the principal of (and premium, if any) and interest to stated maturity
(or redemption) on, the OP Debt Securities of such series. Upon such defeasance
and discharge, the holders of the OP Debt Securities of such series shall no
longer be entitled to the benefits of the OP Indenture, except for the purposes
of registration of transfer and exchange of the OP Debt Securities of such
series and replacement of lost, stolen or mutilated OP Debt Securities and shall
look only to such deposited funds or obligations for payment. In addition, under
present law such defeasance and discharge is likely to be treated as a
redemption of the OP Debt Securities of that series prior to maturity in
exchange for such money or United States government obligations. In that event,
each holder would generally recognize, at the time of defeasance, gain or loss
measured by the difference between the amount of such money and the fair market
value of the United States government obligations deemed received and such
holder's tax basis in the OP Debt Securities deemed surrendered. Thereafter,
each holder would likely be treated as if such holder held an undivided interest
in the money (or investments made therewith) or the United States government
obligations (or investments made with interest received therefrom), would
generally be subject to tax liability in respect of interest income and/or
original issue discount, if applicable, thereon and would recognize any gain or
loss upon any disposition, including redemption, of such assets or obligations.
Although tax might be owed, the holder of a defeased OP Debt Security would not
receive any cash until the maturity or an earlier redemption of the OP Debt
Security (except for current payments of interest on the OP Debt Securities of
that issue). Such tax treatment could affect the purchase price that a holder
would receive upon the sale of the OP Debt Securities. Holders are urged to
consult their own tax advisors with respect to the tax treatment of defeasance
of any OP Debt Securities.
THE TRUSTEES
The trustee for any OP Debt Securities will be named in the applicable
Prospectus Supplement. Each trustee will be permitted to engage in other
transactions with the AIMCO Operating Partnership and each of their
subsidiaries; however, if a trustee acquires any conflicting interest, it must
eliminate such conflict or resign.
DESCRIPTION OF PREFERRED STOCK
GENERAL
Under its Articles of Incorporation, as amended and supplemented from time
to time (the "Charter"), AIMCO may issue, from time to time, shares of one or
more series or classes of Preferred Stock. The following description sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. The particular terms of any series of
Preferred Stock that may be issued and sold pursuant hereto, and the extent, if
any, to which such general provisions may apply to the series of Preferred Stock
so offered will be described in the Prospectus Supplement relating to such
Preferred Stock. The following summary of the material provisions of the
Preferred Stock does not purport to be complete and is subject to, and is
qualified in its entirety by express reference to, articles supplementary
relating to a specific series of the Preferred Stock, which will be in the form
filed as an exhibit to or incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of issuance
of such series of Preferred Stock.
As of November 15, 1998, the Charter authorizes the issuance of 510,750,000
shares of capital stock, of which 750,000 shares are classified as Class B
Preferred Stock, all of which are issued and outstanding,
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2,760,000 shares are classified as Class C Preferred Stock, of which 2,400,000
shares are issued and outstanding, 4,600,000 shares are classified as Class D
Preferred Stock, of which 4,200,000 shares are issued and outstanding,
10,000,000 shares are classified as Class E Preferred Stock, of which 8,406,955
shares were issued to former Insignia stockholders and 0.5 million shares were
reserved for options and warrants, in the aggregate, pursuant to the October 1,
1998 merger of Insignia Financial Group, Inc. ("Insignia") into AIMCO, 4,050,000
shares are classified as Class G Preferred Stock, all of which are issued and
outstanding, 2,300,000 shares are classified as Class H Preferred Stock, of
which 2,000,000 shares are issued and outstanding, and 2,000,000 shares are
classified as Class J Preferred Stock, of which 1,250,000 shares are issued and
outstanding (including 250,000 shares which are held by the AIMCO Operating
Partnership). See "Description of Other Classes of Outstanding Stock." The Board
of Directors of AIMCO (the "AIMCO Board") is authorized to issue shares of
Preferred Stock, in one or more classes or subclasses, and may classify and
reclassify any of its unissued capital stock into shares of Preferred Stock by
setting or changing in any one or more respects the preferences, conversion or
other rights, voting powers, restrictions, limitations as to dividends,
qualifications or terms or conditions of redemption of such shares of capital
stock including, but not limited to, ownership restrictions consistent with the
Ownership Limit (defined below) with respect to each series or class of capital
stock, and the number of shares constituting each series or class, and to
increase or decrease the number of shares of any such series or class, to the
extent permitted by the Maryland General Corporation Law (the "MGCL") and the
Charter.
The AIMCO Board shall be authorized to determine for each series of
Preferred Stock, and the Prospectus Supplement shall set forth with respect to
each series that may be issued and sold pursuant hereto: (i) the designation of
such shares and the number of shares that constitute such series, (ii) the
dividend rate (or the method of calculation thereof), if any, on the shares of
such series and the priority as to payment of dividends with respect to other
classes or series of capital stock of AIMCO, (iii) the dividend periods (or the
method of calculation thereof), (iv) the voting rights of the shares, (v) the
liquidation preference and the priority as to payment of such liquidation
preference with respect to other classes or series of capital stock of AIMCO and
any other rights of the shares of such series upon any liquidation or winding-up
of AIMCO, (vi) whether or not and on what terms the shares of such series will
be subject to redemption or repurchase at the option of AIMCO, (vii) whether and
on what terms the shares of such series will be convertible into or exchangeable
for other debt or equity securities of AIMCO, (viii) whether the shares of such
series of Preferred Stock will be listed on a securities exchange, (ix) any
special United States federal income tax considerations applicable to such
series, and (x) the other rights and privileges and any qualifications,
limitations or restrictions of such rights or privileges of such series not
inconsistent with the Charter and the MGCL.
CONVERTIBILITY
No series of Preferred Stock that may be issued and sold pursuant hereto
will be convertible into, or exchangeable for, other securities or property,
except as set forth in the applicable Prospectus Supplement, which will set
forth the terms and conditions upon which such conversion or exchange may be
effected, including the initial conversion or exchange rate and any adjustments
thereto, the conversion or exchange period and any other conversion or exchange
provisions.
DIVIDENDS
Holders of shares of Preferred Stock, shall be entitled to receive, when
and as declared by the AIMCO Board, out of funds of AIMCO legally available
therefor, an annual cash dividend payable at such dates and at such rates, if
any, per share per annum as set forth in the applicable Prospectus Supplement.
Unless otherwise set forth in the applicable Prospectus Supplement, each
series of Preferred Stock that may be issued and sold pursuant hereto, will rank
junior as to dividends to any Preferred Stock that may be issued in the future
that is expressly senior as to dividends to the Preferred Stock. If at any time
AIMCO has failed to pay accrued dividends on any such senior shares at the time
such dividends are payable, AIMCO may not pay any dividend on the Preferred
Stock or redeem or otherwise repurchase shares of Preferred Stock until such
accumulated but unpaid dividends on such senior shares have been paid or set
aside for payment in full by AIMCO.
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Unless otherwise set forth herein or in the applicable Prospectus
Supplement relating to any class or series of Preferred Stock that may be issued
and sold pursuant hereto, no dividends (other than dividends payable in Class A
Common Stock or Class B Common Stock (collectively, the "Common Stock") or other
capital stock ranking junior to the Preferred Stock of any series as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment, nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of AIMCO ranking junior to or on a parity with
the Preferred Stock of such series as to dividends, nor shall any Common Stock
or any other capital stock of AIMCO ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by AIMCO (except by conversion into or exchange for other capital
stock of AIMCO ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation) unless (i) if such series of Preferred Stock has
a cumulative dividend, full cumulative dividends on the Preferred Stock of such
series have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for all past dividend periods
and the then current dividend period and (ii) if such series of Preferred Stock
does not have a cumulative dividend, full dividends on the Preferred Stock of
such series have been or contemporaneously are declared and paid or declared and
a sum sufficient for the payment thereof set apart for payment for the then
current dividend period; provided, however, that any monies theretofore
deposited in any sinking fund with respect to any Preferred Stock in compliance
with the provisions of such sinking fund may thereafter be applied to the
purchase or redemption of such Preferred Stock in accordance with the terms of
such sinking fund, regardless of whether at the time of such application full
cumulative dividends upon shares of the Preferred Stock outstanding on the last
dividend payment date shall have been paid or declared and set apart for
payment; and provided, further, that any such junior or parity preferred stock
or Common Stock may be converted into or exchanged for stock of AIMCO ranking
junior to the Preferred Stock as to dividends.
The amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period shall be computed on the basis of a
360-day year of twelve 30-day months. Accrued but unpaid dividends will not bear
interest.
REDEMPTION AND SINKING FUND
No series of Preferred Stock that may be issued and sold pursuant hereto
will be redeemable or be entitled to receive the benefit of a sinking fund,
except as set forth in the applicable Prospectus Supplement, which will set
forth the terms and conditions thereof, including the dates and redemption
prices of any such redemption, any conditions thereto, and any other redemption
or sinking fund provisions.
LIQUIDATION RIGHTS
Unless otherwise set forth herein or in the applicable Prospectus
Supplement, in the event of any liquidation, dissolution or winding up of AIMCO,
the holders of shares of each series of Preferred Stock that may be issued and
sold pursuant hereto are entitled to receive out of assets of AIMCO available
for distribution to stockholders, before any distribution of assets is made to
holders of: (i) any other shares of Preferred Stock ranking junior to such
series of Preferred Stock as to rights upon liquidation, dissolution or winding
up; and (ii) shares of Common Stock, liquidating distributions per share in the
amount of the liquidation preference specified in the applicable Prospectus
Supplement for such series of Preferred Stock plus any dividends accrued and
accumulated but unpaid to the date of final distribution; but the holders of
each series of Preferred Stock will not be entitled to receive the liquidating
distribution of, plus such dividends on, such shares until the liquidation
preference of any shares of AIMCO's capital stock ranking senior to such series
of the Preferred Stock as to the rights upon liquidation, dissolution or winding
up shall have been paid (or a sum set aside therefor sufficient to provide for
payment) in full. If upon any liquidation, dissolution or winding up of AIMCO,
the amounts payable with respect to the Preferred Stock, and any other Preferred
Stock ranking as to any such distribution on a parity with the Preferred Stock
are not paid in full, the holders of the Preferred Stock and such other parity
preferred stock will share ratably in any such distribution of assets in
proportion to the full respective preferential amount to which they are
entitled. Unless otherwise specified in
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a Prospectus Supplement for a series of Preferred Stock, after payment of the
full amount of the liquidating distribution to which they are entitled, the
holders of shares of Preferred Stock will not be entitled to any further
participation in any distribution of assets by AIMCO. Neither a consolidation or
merger of AIMCO with another corporation nor a sale of securities shall be
considered a liquidation, dissolution or winding up of AIMCO.
VOTING RIGHTS
Holders of Preferred Stock that may be issued and sold pursuant hereto will
not have any voting rights except as set forth below or in the applicable
Prospectus Supplement or as otherwise from time to time required by law.
Whenever dividends on any applicable series of Preferred Stock or any other
class or series of stock ranking on a parity with the applicable series of
Preferred Stock with respect to the payment of dividends shall be in arrears for
the equivalent of six quarterly dividend periods, whether or not consecutive,
the holders of shares of such series of Preferred Stock (voting separately as a
class with all other series of Preferred Stock then entitled to such voting
rights) will be entitled to vote for the election of two of the authorized
number of directors of AIMCO at the next annual meeting of stockholders and at
each subsequent meeting until all dividends accumulated on such series of
Preferred Stock shall have been fully paid or set apart for payment. The term of
office of all directors elected by the holders of such Preferred Stock shall
terminate immediately upon the termination of the right of the holders of such
Preferred Stock to vote for directors. Unless otherwise set forth in the
applicable Prospectus Supplement, holders of shares of Preferred Stock that may
be issued and sold pursuant hereto will have one vote for each share held.
So long as any shares of any series of Preferred Stock remain outstanding,
AIMCO shall not, without the consent of holders of at least two-thirds of the
shares of such series of Preferred Stock outstanding at the time, voting
separately as a class with all other series of Preferred Stock of AIMCO upon
which like voting rights have been conferred and are exercisable, (i) issue or
increase the authorized amount of any class or series of stock ranking prior to
the outstanding Preferred Stock as to dividends or upon liquidation or (ii)
amend, alter or repeal the provisions of the Charter relating to such series of
Preferred Stock, whether by merger, consolidation or otherwise, so as to
materially adversely affect any power, preference or special right of such
series of Preferred Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized Common Stock or authorized Preferred
Stock or any increase or decrease in the number of shares of any series of
Preferred Stock or the creation and issuance of other series of Common Stock or
Preferred Stock ranking on a parity with or junior to Preferred Stock as to
dividends and upon liquidation, dissolution or winding up shall not be deemed to
materially adversely affect such powers, preferences or special rights.
MISCELLANEOUS
The holders of Preferred Stock will have no preemptive rights. The
Preferred Stock that may be issued and sold pursuant hereto, upon issuance
against full payment of the purchase price therefor, will be fully paid and
nonassessable. Shares of Preferred Stock redeemed or otherwise reacquired by
AIMCO shall resume the status of authorized and unissued shares of Preferred
Stock undesignated as to series, and shall be available for subsequent issuance.
There are no restrictions on repurchase or redemption of the Preferred Stock
while there is any arrearage on sinking fund installments except as may be set
forth in an applicable Prospectus Supplement. Payment of dividends on, and the
redemption or repurchase of, any series of Preferred Stock may be restricted by
loan agreements, indentures and other agreements entered into by AIMCO. The
accompanying Prospectus Supplement will describe any material contractual
restrictions on such dividend payments.
NO OTHER RIGHTS
The shares of a series of Preferred Stock that may be issued and sold
pursuant hereto will not have any preferences, voting powers or relative,
participating, optional or other special rights except as set forth above or in
the applicable Prospectus Supplement or the Charter or as otherwise required by
law.
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TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Preferred Stock that
may be issued and sold pursuant hereto will be designated in the applicable
Prospectus Supplement.
DESCRIPTION OF CLASS A COMMON STOCK
GENERAL
As of November 15, 1998, the Charter authorizes the issuance of up to
510,750,000 shares of capital stock with a par value of $.01 per share, of which
484,027,500 shares were classified as Class A Common Stock and 262,500 shares
were classified as Class B Common Stock. As of November 15, 1998, there were
48,130,525 shares of Class A Common Stock issued and outstanding and 162,500
share of Class B Common Stock issued and outstanding. The Class A Common Stock
is traded on the NYSE under the symbol "AIV." BankBoston, N.A. serves as
transfer agent and registrar of the Class A Common Stock.
Holders of the Class A Common Stock are entitled to receive dividends, when
and as declared by the AIMCO Board, out of funds legally available therefor. The
holders of shares of Class A Common Stock, upon any liquidation, dissolution or
winding up of AIMCO, are entitled to receive ratably any assets remaining after
payment in full of all liabilities of AIMCO and the liquidation preferences of
preferred stock. The shares of Class A Common Stock (which vote with the Class B
Common Stock) possess ordinary voting rights for the election of directors of
AIMCO (the "Directors" and, collectively, the "AIMCO Board") and in respect of
other corporate matters, each share entitling the holder thereof to one vote.
Holders of shares of Class A Common Stock do not have cumulative voting rights
in the election of Directors, which means that holders of more than 50% of the
shares of Class A Common Stock voting for the election of Directors can elect
all of the Directors if they choose to do so and the holders of the remaining
shares cannot elect any Directors. Holders of shares of Class A Common Stock do
not have preemptive rights, which means they have no right to acquire any
additional shares of Class A Common Stock that may be issued by AIMCO at a
subsequent date.
RESTRICTIONS ON TRANSFER
For AIMCO to qualify as a REIT under the Internal Revenue Code of 1986, as
amended (the "Code"), not more than 50% in value of its outstanding capital
stock may be owned, directly or indirectly, by five or fewer individuals (as
defined in the Code to include certain entities) during the last half of a
taxable year and the shares of capital stock must be beneficially owned by 100
or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year. Because the AIMCO Board
believes that it is essential for AIMCO to continue to qualify as a REIT and to
provide additional protection for AIMCO's stockholders in the event of certain
transactions, the AIMCO Board has adopted provisions of the Charter restricting
the acquisition of shares of Common Stock.
Subject to certain exceptions specified in the Charter, no holder may own,
or be deemed to own by virtue of various attribution and constructive ownership
provisions of the Code and Rule 13d-3 under the Exchange Act, more than 8.7% (or
15% in the case of certain pension trusts described in the Code, investment
companies registered under the Investment Company Act of 1940 and Mr. Considine)
of the outstanding shares of Common Stock. For purposes of calculating the
amount of stock owned by a given individual, the individual's Common Stock and
Partnership Common Units ("OP Units") of the AIMCO Operating Partnership are
aggregated. Under certain conditions, the AIMCO Board may waive the Ownership
Limit. However, in no event may such holder's direct or indirect ownership of
Common Stock exceed 9.8% of the total outstanding shares of Common Stock. As a
condition of such waiver, the AIMCO Board may require opinions of counsel
satisfactory to it and/or an undertaking from the applicant with respect to
preserving the REIT status of AIMCO. If shares of Common Stock in excess of the
Ownership Limit, or shares of Common Stock which would cause the REIT to be
beneficially owned by fewer than 100 persons, or which would result in AIMCO
being "closely held," within the meaning of Section 856(h) of the Code, or which
would otherwise result in AIMCO failing to qualify as a REIT, are issued or
transferred to any person, such issuance or transfer shall be null and void to
the intended transferee, and the intended transferee would acquire no rights to
the
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stock. Shares of Common Stock transferred in excess of the Ownership Limit or
other applicable limitations will automatically be transferred to a trust for
the exclusive benefit of one or more qualifying charitable organizations to be
designated by AIMCO. Shares transferred to such trust will remain outstanding,
and the trustee of the trust will have all voting and dividend rights pertaining
to such shares. The trustee of such trust may transfer such shares to a person
whose ownership of such shares does not violate the Ownership Limit or other
applicable limitation. Upon a sale of such shares by the trustee, the interest
of the charitable beneficiary will terminate, and the sales proceeds would be
paid, first, to the original intended transferee, to the extent of the lesser of
(a) such transferee's original purchase price (or the market value of such
shares on the date of the violative transfer if purportedly acquired by gift or
devise) and (b) the price received by the trustee, and, second, any remainder to
the charitable beneficiary. In addition, shares of stock held in such trust are
purchasable by AIMCO for a 90-day period at a price equal to the lesser of the
price paid for the stock by the original intended transferee (or the original
market value of such shares if purportedly acquired by gift or devise) and the
market price for the stock on the date that AIMCO determines to purchase the
stock. The 90-day period commences on the date of the violative transfer or the
date that the AIMCO Board determines in good faith that a violative transfer has
occurred, whichever is later. All certificates representing shares of Common
Stock bear a legend referring to the restrictions described above.
All persons who own, directly or by virtue of the attribution provisions of
the Code and Rule 13d-3 under the Exchange Act, more than a specified percentage
of the outstanding shares of Common Stock must file a written statement or an
affidavit with AIMCO containing the information specified in the Charter within
30 days after January 1 of each year. In addition, each stockholder shall upon
demand be required to disclose to AIMCO in writing such information with respect
to the direct, indirect and constructive ownership of shares as the AIMCO Board
deems necessary to comply with the provisions of the Code applicable to a REIT
or to comply with the requirements of any taxing authority or governmental
agency.
The ownership limitations may have the effect of precluding acquisition of
control of AIMCO by a third party unless the AIMCO Board determines that
maintenance of REIT status is no longer in the best interests of AIMCO.
BUSINESS COMBINATIONS
Under the MGCL, certain "business combinations" (including a merger,
consolidation, share exchange or, in certain circumstances, an asset transfer or
issuance or reclassification of equity securities) between a Maryland
corporation and any person who beneficially owns 10% or more of the voting power
of the corporation's shares or an affiliate or associate of the corporation who,
at any time within the two-year period prior to the date in question, was the
beneficial owner of 10% or more of the voting power of the then-outstanding
voting stock of the corporation (an "Interested Stockholder") or an affiliate or
associate thereof are prohibited for five years after the most recent date on
which the Interested Stockholder became an Interested Stockholder. Thereafter,
any such business combination must be recommended by the board of directors of
the corporation and approved by the affirmative vote of at least (a) 80% of the
votes entitled to be cast by holders of outstanding voting shares of the
corporation, voting together as a single voting group, and (b) two-thirds of the
votes entitled to be cast by holders of outstanding voting shares of the
corporation other than shares held by the Interested Stockholder or an affiliate
or associate of the Interested Stockholder with whom the business combination is
to be effected, unless, among other conditions, the corporation's stockholders
receive a minimum price (as defined in the MGCL) for their shares and the
consideration is received in cash or in the same form as previously paid by the
Interested Stockholder for its shares. For purposes of determining whether a
person is an Interested Stockholder of AIMCO, ownership of OP Units will be
treated as beneficial ownership of the shares of Common Stock which may be
issued in exchange for the OP Units when such OP Units are tendered for
redemption. The business combination statute could have the effect of
discouraging offers to acquire AIMCO and of increasing the difficulty of
consummating any such offer. These provisions of the MGCL do not apply, however,
to business combinations that are approved or exempted by the board of directors
of the corporation prior to the time that the Interested Stockholder becomes an
Interested Stockholder. The AIMCO Board has not passed such a resolution.
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CONTROL SHARE ACQUISITIONS
The MGCL provides that "control shares" of a Maryland corporation acquired
in a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares of stock owned by the acquiror or by officers or directors who
are employees of the corporation. "Control shares" are voting shares of stock
that, if aggregated with all other shares of stock previously acquired by that
person, would entitle the acquiror to exercise voting power in electing
directors within one of the following ranges of voting power: (i) one-fifth or
more but less than one-third, (ii) one-third or more but less than a majority or
(iii) a majority of all voting power. Control shares do not include shares the
acquiring person is then entitled to vote as a result of having previously
obtained stockholder approval. For purposes of determining whether a Person is
an Interested Stockholder of AIMCO, ownership of OP Units will be treated as
beneficial ownership of the shares of Common Stock which may be issued in
exchange for the OP Units when such OP Units are tendered for redemption.
A "control share acquisition" means the acquisition of control shares,
subject to certain exceptions. A person who has made or proposes to make a
control share acquisition, upon satisfaction of certain conditions (including an
undertaking to pay expenses), may compel the corporation's board of directors to
call a special meeting of stockholders, to be held within 50 days of demand, to
consider the voting rights of the shares. If no request for a meeting is made,
the corporation may itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an "acquiring person statement" as required by the statute,
then, subject to certain conditions and limitations, the corporation may redeem
any or all of the control shares (except those for which voting rights have
previously been approved) for fair value determined, without regard to the
absence of voting rights, as of the date of the last control share acquisition
or of any meeting of stockholders at which the voting rights of such shares were
considered and not approved. If voting rights for control shares are approved at
a stockholders meeting and the acquiror becomes entitled to vote a majority of
the shares entitled to vote, all other stockholders may exercise appraisal
rights. The fair value of the shares as determined for purposes of the appraisal
rights may not be less than the highest price per share paid in the control
share acquisition, and certain limitations and restrictions otherwise applicable
to the exercise of dissenters' rights do not apply in the context of a control
share acquisition.
The control share acquisition statute does not apply to shares acquired in
a merger, consolidation or share exchange if the corporation is a party to the
transaction, or to acquisitions approved or exempted by the corporation's
articles of incorporation or bylaws prior to the control share acquisition. No
such exemption appears in the Charter or in AIMCO's bylaws (the "Bylaws"). The
control share acquisition statute could have the effect of discouraging offers
to acquire AIMCO and of increasing the difficulty of consummating any such
offer.
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DESCRIPTION OF OTHER CLASSES OF OUTSTANDING STOCK
CLASS B PREFERRED STOCK
On August 4, 1997, AIMCO issued 750,000 shares of its Class B Preferred
Stock to an institutional investor (the "Preferred Share Investor") for $75.0
million. The Class B Preferred Stock has an aggregate liquidation value of $75
million and, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of AIMCO, ranks (a) prior or senior to the Class A
Common Stock, the Class B Common Stock, the Class E Preferred Stock, and any
other class or series of capital stock of AIMCO if the holders of the Class B
Preferred Stock shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding-up in preference or
priority to the holders of shares of such class or series ("Class B Junior
Stock"), (b) on a parity with the Class C Preferred Stock, the Class D Preferred
Stock, the Class G Preferred Stock and the Class H Preferred Stock and with any
other class or series of capital stock of AIMCO if the holders of such class or
series of stock and the Class B Preferred Stock shall be entitled to the receipt
of dividends or of amounts distributable upon liquidation, dissolution or
winding-up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or priority
of one over the other ("Class B Parity Stock") and (c) junior to any class or
series of capital stock of AIMCO if the holders of such class or series shall be
entitled to the receipt of dividends or amounts distributable upon liquidation,
dissolution or winding-up in preference or priority to the holders of the Class
B Preferred Stock ("Class B Senior Stock"). Holders of the Class B Preferred
Stock are entitled to receive, when, as and if declared by the AIMCO Board,
quarterly cash dividends per share equal to the greater of (i) $1.78125 (the
"Base Rate") and (ii) the cash dividends declared on the number of shares of
Class A Common Stock into which one share of Class B Preferred Stock is
convertible. On or after August 4, 1998, each share of Class B Preferred Stock
may be converted at the option of the holder into 3.28407 shares of Class A
Common Stock, subject to certain anti-dilution adjustments. AIMCO may redeem any
or all of the Class B Preferred Stock on or after August 4, 2002 at a redemption
price of $100 per share, plus unpaid dividends accrued on the shares redeemed.
Holders of Class B Preferred Stock, voting as a class with the holders of
all Class B Parity Stock, will be entitled to elect (i) two directors of AIMCO
if six quarterly dividends (whether or not consecutive) on the Class B Preferred
Stock or any Class B Parity Stock are in arrears, and (ii) one director of AIMCO
if for two consecutive quarterly dividend periods AIMCO fails to pay at least
$0.4625 in dividends on the Class A Common Stock and, in any such case, the
number of directors constituting the AIMCO Board shall be increased by one or
two, as the case may be (if not already increased by reason of similar types of
provisions with respect to shares of Class B Parity Stock). The affirmative vote
of the holders of two-thirds of the outstanding shares of Class B Preferred
Stock will be required to amend the Charter in any manner that would adversely
affect the rights of the holders of Class B Preferred Stock, and to approve the
issuance of any capital stock that ranks senior to the Class B Preferred Stock
with respect to payment of dividends or upon liquidation, dissolution, winding
up or otherwise. If the IRS were to make a final determination that AIMCO does
not qualify as a REIT in accordance with Sections 856 through 860 of the Code,
the Base Rate for the quarterly cash dividends on the Class B Preferred Stock
would increase to $3.03125 per share.
The agreement pursuant to which AIMCO issued the Class B Preferred Stock
(the "Preferred Share Purchase Agreement") provides that the Preferred Share
Investor may require AIMCO to repurchase such investor's Class B Preferred Stock
in whole or in part at a price of 105% of the liquidation preference thereof,
plus accrued and unpaid dividends on the purchased shares, if (i) AIMCO shall
fail to continue to be taxed as a REIT pursuant to Sections 856 through 860 of
the Code, or (ii) upon the occurrence of a change of control (as defined in the
Preferred Share Purchase Agreement). The Preferred Share Purchase Agreement also
provides that, so long as the Preferred Share Investor owns Class B Preferred
Stock with an aggregate liquidation preference of at least $18.75 million,
neither AIMCO, the AIMCO Operating Partnership nor any subsidiary of AIMCO may
issue preferred securities or incur indebtedness for borrowed money if
immediately following such issuance and after giving effect thereto and the
application of the net proceeds therefrom, AIMCO's ratio of aggregate
consolidated earnings before interest, taxes, depreciation and amortization to
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aggregate consolidated fixed charges for the four fiscal quarters immediately
preceding such issuance would be less than 1.5 to 1.
Subject to certain exceptions specified in the provisions of the Charter
establishing the terms of the Class B Preferred Stock, no holder may own, or be
deemed to own by virtue of various attribution and constructive ownership
provisions of the Code and Rule 13d-3 under the Exchange Act, shares of Class B
Preferred Stock with a value in excess of the excess of (i) 8.7% (or 15% in the
case of certain pension trusts described in the Code, investment companies
registered under the Investment Company Act of 1940 and Mr. Considine) of the
aggregate value of all shares of capital stock of AIMCO over (ii) the aggregate
value of all shares of capital stock of AIMCO other than Class B Preferred Stock
that are owned by such holder (the "Class B Preferred Ownership Limit"). Under
certain conditions, the AIMCO Board may waive such ownership limit. As a
condition of such waiver, the AIMCO Board may require opinions of counsel
satisfactory to it and/or an undertaking from the applicant with respect to
preserving the REIT status of AIMCO. If shares of Class B Preferred Stock in
excess of the Class B Preferred Ownership Limit, or shares of Class B Preferred
Stock which would result in AIMCO being "closely held," within the meaning of
Section 856(h) of the Code, or which would otherwise result in AIMCO failing to
qualify as a REIT, are issued or transferred to any person, such issuance or
transfer will be null and void to the intended transferee, and the intended
transferee would acquire no rights to the stock. Shares of Class B Preferred
Stock transferred in excess of the Class B Preferred Ownership Limit or other
applicable limitations will automatically be transferred to a trust for the
exclusive benefit of one or more qualifying charitable organizations to be
designated by AIMCO. Shares transferred to such trust will remain outstanding,
and the trustee of the trust will have all voting and dividend rights pertaining
to such shares. The trustee of such trust may transfer such shares to a person
whose ownership of such shares does not violate the Class B Preferred Ownership
Limit or other applicable limitation. Upon a sale of such shares by the trustee,
the interest of the charitable beneficiary will terminate, and the sales
proceeds would be paid, first, to the original intended transferee, to the
extent of the lesser of (a) such transferee's original purchase price (or the
market value of such shares on the date of the violative transfer if purportedly
acquired by gift or devise) and (b) the price received by the trustee, and,
second, any remainder to the charitable beneficiary. In addition, shares of
stock held in such trust are purchasable by AIMCO for a 90-day period at a price
equal to the lesser of the price paid for the stock by the original intended
transferee (or the original market value of such shares if purportedly acquired
by gift or devise) and the market price for the stock on the date that AIMCO
determines to purchase the stock. The 90-day period commences on the date of the
violative transfer or the date that the AIMCO Board determines in good faith
that a violative transfer has occurred, whichever is later. All certificates
representing shares of Class B Preferred Stock bear a legend referring to the
restrictions described above.
CLASS C PREFERRED STOCK
On December 23, 1997, AIMCO issued 2,400,000 shares of Class C Preferred
Stock in an underwritten public offering for net proceeds of approximately $57.9
million. The Class C Preferred Stock, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of AIMCO, ranks (a) prior or senior
to the Class A Common Stock, the Class B Common Stock, the Class E Preferred
Stock and any other class or series of capital stock of AIMCO if the holders of
the Class C Preferred Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding-up in preference
or priority to the holders of shares of such class or series ("Class C Junior
Stock"), (b) on a parity with the Class B Preferred Stock, the Class D Preferred
Stock, the Class G Preferred Stock and the Class H Preferred Stock and with any
other class or series of capital stock of AIMCO if the holders of such class or
series of stock and the Class C Preferred Stock shall be entitled to the receipt
of dividends and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or priority
of one over the other ("Class C Parity Stock") and (c) junior to any class or
series of capital stock of AIMCO if the holders of such class or series shall be
entitled to the receipt of dividends or amounts distributable upon liquidation,
dissolution or winding up in preference or priority to the holders of the Class
C Preferred Stock ("Class C Senior Stock").
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Holders of Class C Preferred Stock are entitled to receive cash dividends
at the rate of 9% per annum of the $25 liquidation preference (equivalent to
$2.25 per annum per share). Such dividends are cumulative from the date of
original issue, and are payable quarterly on or before January 15, April 15,
July 15 and October 15 of each year. Upon any liquidation, dissolution or
winding up of AIMCO, before payment or distribution by AIMCO shall be made to or
set apart for the holders of any shares of Class C Junior Stock, the holders of
Class C Preferred Stock shall be entitled to receive a liquidation preference of
$25 per share (the "Class C Liquidation Preference"), plus an amount equal to
all accumulated, accrued and unpaid dividends to the date of final distribution
to such holders; but such holders shall not be entitled to any further payment.
If proceeds available for distribution shall be insufficient to pay the
preference described above and any liquidating payments on any other shares of
any class or series of Class C Parity Stock, then such proceeds shall be
distributed among the holders of Class C Preferred Stock and any such other
Class C Parity Stock ratably in the same proportion as the respective amounts
that would be payable on such Class C Preferred Stock and any such other Class C
Parity Stock if all amounts payable thereon were paid in full.
On and after December 23, 2002, AIMCO may redeem shares of Class C
Preferred Stock, in whole or in part, at a cash redemption price equal to 100%
of the Class C Liquidation Preference plus all accrued and unpaid dividends to
the date fixed for redemption. The Class C Preferred Stock has no stated
maturity and will not be subject to any sinking find or mandatory redemption
provisions.
Holders of shares of Class C Preferred Stock have no voting rights, except
that if distributions on Class C Preferred Stock or any series or class of Class
C Parity Stock shall be in arrears for six or more quarterly periods, the number
of directors constituting the AIMCO Board shall be increased by two and the
holders of Class C Preferred Stock (voting together as a single class with all
other shares of Class C Parity Stock which are entitled to similar voting
rights) will be entitled to vote for the election of the two additional
directors of AIMCO at any annual meeting of stockholders or at a special meeting
of the holders of the Class C Preferred Stock called for such purpose. The
affirmative vote of the holders of two thirds of the outstanding shares of Class
C Preferred Stock will be required to amend the Charter in any manner that would
adversely affect the rights of the holders of Class C Preferred Stock, and to
approve the issuance of any capital Stock that ranks senior to the Class C
Preferred Stock with respect to payment of dividends or upon liquidation,
dissolution, winding up or otherwise.
There are ownership restrictions applicable to the Class C Preferred Stock
that are similar to those for the Class B Preferred Stock.
CLASS D PREFERRED STOCK
On February 19, 1998, AIMCO issued 4,200,000 shares of Class D Preferred
Stock in an underwritten public offering for net proceeds of approximately
$101.5 million. The Class D Preferred Stock, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of AIMCO, ranks (a) prior or
senior to the Class A Common Stock, the Class B Common Stock, the Class E
Preferred Stock and any other class or series of capital stock of AIMCO if the
holders of the Class D Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding-up in preference or priority to the holders of shares of such class or
series ("Class D Junior Stock"), (b) on a parity with the Class B Preferred
Stock, the Class C Preferred Stock, the Class G Preferred Stock and the Class H
Preferred Stock and with any other class or series of capital stock of AIMCO if
the holders of such class or series of stock and the Class D Preferred Stock
shall be entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding-up in proportion to their respective amounts
of accrued and unpaid dividends per share or liquidation preferences, without
preference or priority of one over the other ("Class D Parity Stock") and (c)
junior to any class or series of capital stock of AIMCO if the holders of such
class or series shall be entitled to the receipt of dividends or amounts
distributable upon liquidation, dissolution or winding up in preference or
priority to the holders of the Class D Preferred Stock ("Class D Senior Stock").
Holders of Class D Preferred Stock are entitled to receive cash dividends
at the rate of 8 3/4% per annum of the $25 liquidation preference (equivalent to
$2.1875 per annum per share). Such dividends are cumulative from the date of
original issue, and are payable quarterly on or before January 15, April 15,
July 15 and
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October 15 of each year. Upon any liquidation, dissolution or winding up of
AIMCO, before payment or distribution by AIMCO shall be made to or set apart for
the holders of any shares of Class D Junior Stock, the holders of Class D
Preferred Stock shall be entitled to receive a liquidation preference of $25 per
share (the "Class D Liquidation Preference"), plus an amount equal to all
accumulated, accrued and unpaid dividends to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If
proceeds available for distribution shall be insufficient to pay the preference
described above and any liquidating payments on any other shares of any class or
series of Class D Parity Stock, then such proceeds shall be distributed among
the holders of Class D Preferred Stock and any such other Class D Parity Stock
ratably in the same proportion as the respective amounts that would be payable
on such Class D Preferred Stock and any such other Class D Parity Stock if all
amounts payable thereon were paid in full.
On and after February 19, 2003, AIMCO may redeem shares of Class D
Preferred Stock, in whole or in part, at a cash redemption price equal to 100%
of the Class D Liquidation Preference plus all accrued and unpaid dividends to
the date fixed for redemption. The Class D Preferred Stock has no stated
maturity and will not be subject to any sinking fund or mandatory redemption
provisions.
Holders of shares of Class D Preferred Stock have no voting rights, except
that if distributions on Class D Preferred Stock or any series or class of Class
D Parity Stock shall be in arrears for six or more quarterly periods, the number
of directors constituting the AIMCO Board shall be increased by two and the
holders of Class D Preferred Stock (voting together as a single class with all
other shares of Class D Parity Stock which are entitled to similar voting
rights) will be entitled to vote for the election of the two additional
directors of AIMCO at any annual meeting of stockholders or at a special meeting
of the holders of the Class D Preferred Stock called for the purpose. The
affirmative vote of the holders of two-thirds of the outstanding shares of Class
D Preferred Stock will be required to amend the Charter in any manner that would
adversely affect the rights of the holders of Class D Preferred Stock, and to
approve the issuance of any capital stock that ranks senior to the Class D
Preferred Stock with respect to payment of dividends or upon liquidation,
dissolution, winding up or otherwise.
There are ownership restrictions applicable to the Class D Preferred Stock
that are similar to those for the Class B Preferred Stock.
CLASS E PREFERRED STOCK
On October 1, 1998, Insignia was merged into AIMCO. As merger
consideration, AIMCO has issued to former Insignia stockholders 8,406,955 shares
of Class E Preferred Stock and reserved 0.5 million shares for options and
warrants, in the aggregate. The Class E Preferred Stock (a) after January 15,
1999 ranks prior to Class A Common Stock and Class B Common Stock, and any other
class or series of capital stock of AIMCO if holders of the Class E Preferred
Stock are to be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution, and winding-up in preference or priority to the
holders of shares of such class or series ("Class E Junior Stock"), (b) ranks on
a parity with any class or series of capital stock of AIMCO if the holders of
such class or series of stock and the Class E Preferred Stock shall be entitled
to the receipt of dividends and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of accrued
and unpaid dividends per share or liquidation preferences, without preference or
priority one over the other ("Class E Parity Stock") and (c) ranks junior to the
Class B Preferred Stock, the Class C Preferred Stock, the Class D Preferred
Stock, the Class G Preferred Stock, the Class H Preferred Stock and any other
class or series of capital stock of AIMCO if the holders of such class or series
shall be entitled to the receipt of dividends or amounts distributable upon
liquidation, dissolution or winding up in preference or priority to the holders
of the Class E Preferred Stock ("Class E Senior Stock").
On any date (each, a "Dividend Payment Date") on which cash dividends are
paid on the Class A Common Stock prior to the Call Date (as defined below),
holders of Class E Preferred Stock shall be entitled to receive cash dividends
payable in an amount per share of Class E Preferred Stock equal to the per share
dividend payable on Class A Common Stock on such Dividend Payment Date. Such
dividends shall be cumulative from the date of original issue, and shall be
payable quarterly in arrears on the Dividend Payment Dates, commencing on the
first Dividend Payment Date after the date of original issue. Holders of Class E
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Preferred Stock will be entitled to receive the same cash dividends per share as
holders of Class A Common Stock. In addition, holders of Class E Preferred Stock
on the record date for payment to be set by AIMCO's board of directors will be
entitled to receive a special dividend in an aggregate amount of $50 million
(the "Special Dividend"). Upon any liquidation, dissolution or winding up of
AIMCO, before payment or distribution by AIMCO shall be made to or set apart for
the holders of any shares of Class E Junior Stock, the holders of Class E
Preferred Stock shall be entitled to receive a liquidation preference of $1 per
share plus the Special Dividend if such dividend is unpaid on the date of the
final distribution to such holders (collectively, the "Class E Liquidation
Preference"), and thereafter each share of Class E Preferred Stock shall have
the same rights with respect to assets of AIMCO as one share of Class A Common
Stock.
On any date which the Special Dividend, or any portion thereof, is paid
(which may be declared by the AIMCO Board in its sole discretion), the holders
of Class E Preferred Stock shall be entitled to receive an amount per share of
Class E Preferred Stock equal to the Special Dividend divided by the Series E
Conversion Ratio (as defined in the Insignia Merger Agreement). After January
15, 1999, if any portion of the Special Dividend or any other dividend has yet
to be declared and paid to the holders of Class E Preferred Stock, no dividends
may be declared or paid or set apart for payment by AIMCO on its common stock.
On the close of business on the day on which the Special Dividend (or any
remaining unpaid portion thereof) is paid to the holders of the Class E
Preferred Stock, each share of Class E Preferred Stock will be automatically
converted into one share of Class A Common Stock without any action on the part
of AIMCO or the holder of such share (the "Conversion Date"). If AIMCO at any
time following the consummation of the Insignia merger pays a dividend or makes
a distribution, subdivides, combines, reclassifies, issues rights, options or
warrants or makes any other distribution in securities in relation to its
outstanding Class A Common Stock, then AIMCO will contemporaneously do the same
with respect to the Class E Preferred Stock.
On or after October 1, 2018, AIMCO may redeem shares of Class E Preferred
Stock, in whole or in part, at a cash redemption price equal to the sum of (i)
the greater of (A) the Current Market Price (as defined in the Insignia Merger
Agreement) of the Class A Common Stock on the date specified for redemption by
AIMCO in a notice sent to holders of Class E Preferred Stock (the "Call Date")
or (B) the AIMCO Index Price (as defined in the Insignia Merger Agreement), but
determined without giving effect to the limitation of $38.00 per share, plus
(ii) all accrued and unpaid dividends to the Call Date. The Class E Preferred
Stock has no stated maturity and will not be subject to any sinking fund or
mandatory redemption provisions.
Holders of shares of Class E Preferred Stock are entitled to one-half
( 1/2) of one vote with respect to all matters in which holders of Class A
Common Stock are entitled to vote thereon. In addition, if any portion of the
Special Dividend has yet to be declared and paid to the holders of Class E
Preferred Stock on January 15, 1999, or if distributions on Class E Preferred
Stock or any series or class of Preferred Stock of AIMCO shall be in arrears for
six or more quarterly periods, the number of directors constituting the AIMCO
Board of Directors shall be increased by two (without duplication of any
increase made pursuant to the terms of any other series of preferred stock of
AIMCO) and the holders of Class E Preferred Stock (voting together as a single
class with all other shares of Class E Parity Stock which are entitled to
similar voting rights) will be entitled to vote for the election of the
additional directors of AIMCO. Such right shall continue until full cumulative
dividends for all past dividend periods on all shares of Preferred Stock of
AIMCO, including any shares of Class E Preferred Stock, have been paid or
declared and set apart for payment.
CLASS G PREFERRED STOCK
On July 15, 1998, AIMCO issued 4,050,000 shares of its Class G Preferred
Stock in an underwritten public offering for net proceeds of approximately $98.0
million. The Class G Preferred Stock, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of AIMCO, ranks (a) prior or senior
to the Class A Common Stock, the Class B Common Stock, the Class E Preferred
Stock and any other class or series of capital Stock of AIMCO if the holders of
the Class G Preferred Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding-up in preference
or priority to the holders of shares of such class or series ("Class G Junior
Stock"), (b) on a parity with the Class B Preferred Stock, the Class C Preferred
Stock, the Class D Preferred Stock and the Class H Preferred Stock
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<PAGE> 31
and with any other class or series of capital stock of AIMCO if the holders of
such class or series of stock and the Class G Preferred Stock shall be entitled
to the receipt of dividends and of amounts distributable upon liquidation,
dissolution or winding-up in proportion to their respective amounts of accrued
and unpaid dividends per share or liquidation preferences, without preference or
priority of one over the other ("Class G Parity Stock") and (c) junior to any
class or series of capital stock of AIMCO if the holders of such class or series
shall be entitled to the receipt of dividends or amounts distributable upon
liquidation, dissolution or winding-up in preference or priority to the holders
of the Class G Preferred Stock ("Class G Senior Stock").
Holders of Class G Preferred Stock are entitled to receive cash dividends
at the rate of 9 3/8% per annum of the $25 liquidation preference (equivalent to
$2.34375 per annum per share). Such dividends are cumulative from the date of
original issue, and are payable quarterly on or before January 15, April 15,
July 15 and October 15 of each year, commencing October 15, 1998. Upon any
liquidation, dissolution or winding up of AIMCO, before payment or distribution
by AIMCO shall be made to or set apart for the holders of any shares of Class G
Junior Stock, the holders of Class G Preferred Stock shall be entitled to
receive a liquidation preference of $25 per share (the "Class G Liquidation
Preference"), plus an amount equal to all accumulated, accrued and unpaid
dividends to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If proceeds available for
distribution shall be insufficient to pay the preference described above and any
liquidating payments on any other shares of any class or series of Class G
Parity Stock, then such proceeds shall be distributed among the holders of Class
G Preferred Stock and any such other Class G Parity Stock ratably in the same
proportion as the respective amount that would be payable on such Class G
Preferred Stock and any such other Class G Parity Stock if all amounts payable
thereon were paid in full.
On and after July 15, 2008, AIMCO may redeem shares of Class G Preferred
Stock, in whole or in part, at a cash redemption price equal to 100% of the
Class G Liquidation Preference plus all accrued and unpaid dividends to the date
fixed for redemption. The Class G Preferred Stock has no stated maturity and
will not be subject to any sinking fund or mandatory redemption provisions.
Holders of shares of Class G Preferred Stock have no voting rights, except
that if distributions on Class G Preferred Stock or any series or class of Class
G Parity Stock shall be in arrears for six or more quarterly periods, the number
of directors constituting the AIMCO Board shall be increased by two and the
holders of Class G Preferred Stock (voting together as a single class with all
other shares of Class G Parity Stock, which are entitled to similar voting
rights) will be entitled to vote for the election of the two additional
directors of AIMCO at any annual meeting of stockholders or at a special meeting
of the holders of the Class G Preferred Stock called for the purpose. The
affirmative vote of the holders of two-thirds of the outstanding shares of Class
G Preferred Stock will be required to amend the Charter in any manner that would
adversely affect the rights of the holders of Class G Preferred Stock, and to
approve the issuance of any capital Stock that ranks senior to the Class G
Preferred Stock with respect to payment of dividends or upon liquidation,
dissolution, winding up or otherwise.
There are ownership restrictions applicable to the Class G Preferred Stock
that are similar to those for the Class B Preferred Stock.
CLASS H PREFERRED STOCK
On August 14, 1998, AIMCO issued 2,000,000 shares of its Class H Preferred
Stock in an underwritten public offering for net proceeds of approximately $48.1
million. The Class H Preferred Stock, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of AIMCO, ranks (a) prior or senior
to the Class A Common Stock, the Class B Common Stock, the Class E Preferred
Stock and any other class or series of capital Stock of AIMCO if the holders of
the Class H Preferred Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding-up in preference
or priority to the holders of shares of such class or series ("Class H Junior
Stock"), (b) on a parity with the Class B Preferred Stock, the Class C Preferred
Stock, the Class D Preferred Stock and the Class G Preferred Stock and with any
other class or series of capital stock of AIMCO if the holders of such class or
series of stock and the Class H Preferred Stock shall be entitled to the receipt
of dividends and of amounts distributable upon
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<PAGE> 32
liquidation, dissolution or winding-up in proportion to their respective amounts
of accrued and unpaid dividends per share or liquidation preferences, without
preference or priority of one over the other ("Class H Parity Stock") and (c)
junior to any class or series of capital stock of AIMCO if the holders of such
class or series shall be entitled to the receipt of dividends or amounts
distributable upon liquidation, dissolution or winding-up in preference or
priority to the holders of the Class H Preferred Stock ("Class H Senior Stock").
Holders of Class H Preferred Stock are entitled to receive cash dividends
at the rate of 9 1/2% per annum of the $25 liquidation preference (equivalent to
$2.375 per annum per share). Such dividends are cumulative from the date of
original issue, and are payable quarterly on or before January 15, April 15,
July 15 and October 15 of each year, commencing October 15, 1998. Upon any
liquidation, dissolution or winding up of AIMCO, before payment or distribution
by AIMCO shall be made to or set apart for the holders of any shares of Class H
Junior Stock, the holders of Class H Preferred Stock shall be entitled to
receive a liquidation preference of $25 per share (the "Class H Liquidation
Preference"), plus an amount equal to all accumulated, accrued and unpaid
dividends to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If proceeds available for
distribution shall be insufficient to pay the preference described above and any
liquidating payments on any other shares of any class or series of Class H
Parity Stock, then such proceeds shall be distributed among the holders of Class
H Preferred Stock and any such other Class H Parity Stock ratably in the same
proportion as the respective amount that would be payable on such Class H
Preferred Stock and any such other Class H Parity Stock if all amounts payable
thereon were paid in full.
On and after August 14, 2003, AIMCO may redeem shares of Class H Preferred
Stock, in whole or in part, at a cash redemption price equal to 100% of the
Class H Liquidation Preference plus all accrued and unpaid dividends to the date
fixed for redemption. The Class H Preferred Stock has no stated maturity and
will not be subject to any sinking fund or mandatory redemption provisions.
Holders of shares of Class H Preferred Stock have no voting rights, except
that if distributions on Class H Preferred Stock or any series or class of Class
H Parity Stock shall be in arrears for six or more quarterly periods, the number
of directors constituting the AIMCO Board shall be increased by two and the
holders of Class H Preferred Stock (voting together as a single class with all
other shares of Class H Parity Stock, which are entitled to similar voting
rights) will be entitled to vote for the election of the two additional
directors of AIMCO at any annual meeting of stockholders or at a special meeting
of the holders of the Class H Preferred Stock called for the purpose. The
affirmative vote of the holders of two-thirds of the outstanding shares of Class
H Preferred Stock will be required to amend the Charter in any manner that would
adversely affect the rights of the holders of Class H Preferred Stock, and to
approve the issuance of any capital stock that ranks senior to the Class H
Preferred Stock with respect to payment of dividends or upon liquidation,
dissolution, winding up or otherwise.
There are ownership restrictions applicable to the Class H Preferred Stock
that are similar to those for the Class B Preferred Stock.
CLASS J PREFERRED STOCK
On November 6, 1998, AIMCO issued 1,000,000 shares of its Class J Preferred
Stock in a private placement for net proceeds of approximately $100 million. In
addition, on the same date, AIMCO issued 250,000 shares of Class J Preferred
Stock to the AIMCO Operating Partnership in a private placement in exchange for
250,000 of the AIMCO Operating Partnership's Class J Partnership Preferred
Units. Any other class or series of capital stock of AIMCO ranks (a) prior or
senior to the Class J Preferred Stock, as to the payment of dividends and as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of dividends
and of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Class J Preferred Stock
("Class J Senior Stock"); (b) on a parity with the Class J Preferred Stock, as
to the payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or liquidation prices per share thereof be different from those of the
Class J Preferred Stock, if (i) such capital stock is Class B Preferred Stock,
Class C Preferred Stock, Class D
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<PAGE> 33
Preferred Stock, Class G Preferred Stock, or Class H Preferred Stock of AIMCO,
or (ii) the holders of such class of stock or series and the Class J Preferred
Stock shall be entitled to the receipt of dividends and of amounts distributable
upon liquidation, dissolution or winding up in proportion to their respective
amounts of accrued and unpaid dividends per share or liquidation preferences,
without preference or priority of one over the other ("Class J Parity Stock");
and (c) junior to the Class J Preferred Stock, as to the payment of dividends
and as to the distribution of assets upon liquidation, dissolution or winding
up, if (i) such capital stock or series is Class A Common Stock or Class B
Common Stock of AIMCO, (ii) such capital stock is Class E Preferred Stock of
AIMCO or (iii) the holders of Class J Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
shares of such class or series ("Class J Junior Stock").
Holders of Class J Preferred Stock are entitled to receive cash dividends
at the rate of 7% per annum of the $100 liquidation preference (equivalent to $7
per annum per share) for the period beginning on November 6, 1998 and lasting
until November 15, 1998, 8% per annum of the $100 liquidation preference
(equivalent to $8 per annum per share) for the period beginning on and including
November 15, 1998 and lasting until November 15, 1999, 9% per annum of the $100
liquidation preference (equivalent to $9 per annum per share) for the period
beginning on and including November 15, 1999 and lasting until November 15,
2000, and 9 1/2% per annum of the $100 liquidation preference (equivalent to
$9.50 per annum per share) thereafter. Such dividends are cumulative from
November 6, 1998 and are payable quarterly generally on the date dividends are
paid on the Class A Common Stock with respect to dividend periods ending on
February 15, May 15, August 15 and November 15 of each year. Upon any
liquidation, dissolution or winding up of AIMCO, before payment or distribution
by AIMCO shall be made to or set apart for the holders of any shares of Class J
Junior Stock, the holders of Class J Preferred Stock shall be entitled to
receive a liquidation preference of $100 per share (the "Class J Liquidation
Preference"), plus an amount equal to all accumulated, accrued and unpaid
dividends to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If proceeds available for
distribution shall be insufficient to pay the preference described above and any
liquidating payments on any other shares of any class or series of Class J
Parity Stock, then such proceeds shall be distributed among the holders of Class
J Preferred Stock and any such other Class J Parity Stock ratably in the same
proportion as the respective amount that would be payable on such Class J
Preferred Stock and any such other Class J Parity Stock if all amounts payable
thereon were paid in full.
The Class J Preferred Stock is not redeemable, except in the event of a
violation of any of the ownership restrictions. AIMCO has the right to require
that all or part of the outstanding Class J Preferred Stock be converted into
Class A Common Stock at a conversion price (the "Conversion Price") of $40
(equivalent to a conversion rate of 2.5 shares of Class A Common Stock for each
share of Class J Preferred Stock) (a) at any time after November 6, 2002, if the
market price of the Class A Common Stock in the five most recent trading days is
equal to or greater than $40 or, (b) at any time on or prior to November 6,
2002, if the Internal Rate of Return (as defined in the Charter) exceeds 12.5%.
Holders of shares of Class J Preferred Stock also may at their option convert
any or all of such shares into the number of shares of Class A Common Stock
obtained by dividing the Class J Liquidation Preference (excluding any
accumulated accrued and unpaid dividends) per share of Class J Preferred Stock
by the Conversion Price. The Conversion Price is subject to adjustment from time
to time under certain circumstances.
Holders of shares of Class J Preferred Stock have no voting rights, except
that if distributions on Class J Preferred Stock or any series or class of Class
J Parity Stock shall be in arrears for six or more quarterly periods, the number
of directors constituting the AIMCO Board shall be increased by two and the
holders of Class J Preferred Stock (voting together as a single class with all
other shares of Class J Parity Stock, which are entitled to similar voting
rights) will be entitled to vote for the election of the two additional
directors of AIMCO at any annual meeting of stockholders or at a special meeting
of the holders of the Class J Preferred Stock called for the purpose. The
affirmative vote of the holders of two-thirds of the outstanding shares of Class
J Preferred Stock will be required to amend the Charter in any manner that would
adversely affect the rights of the holders of Class J Preferred Stock and to
approve the issuance of any capital stock that ranks
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<PAGE> 34
senior to the Class J Preferred Stock with respect to payment of dividends or
upon liquidation, dissolution, winding up or otherwise.
There are ownership restrictions applicable to the Class J Preferred Stock
that are similar to those for the Class B Preferred Stock.
CLASS B COMMON STOCK
In connection with the initial formation of AIMCO, Terry Considine, Peter
Kompaniez, Steven Ira and Robert P. Lacy (a former officer of AIMCO) acquired an
aggregate of 650,000 shares of Class B Common Stock. The Charter, which
initially authorized 750,000 shares of Class B Common Stock, was amended in June
1998 to authorize 262,500 shares of Class B Common Stock, of which 162,500
shares were issued and outstanding as of October 1, 1998. The Class B Common
Stock does not have voting or dividend rights and, unless converted into Class A
Common Stock, as described below, is subject to repurchase by AIMCO as described
below. As of December 31 of each of the years 1994 through 1998 (each, a
"Year-End Testing Date"), a number of the shares of Class B Common Stock
outstanding as of such date (the "Eligible Class B Shares") become eligible for
automatic conversion (subject to the Ownership Limit) into an equal number of
shares of Class A Common Stock (subject to adjustment upon the occurrence of
certain events in respect of the Class A Common Stock, including stock
dividends, subdivisions, combinations and reclassifications). Once Class B
Common Stock has been converted into Class A Common Stock, holders of such
shares of converted Class A Common Stock will have voting and dividend rights of
Class A Common Stock generally. Once converted or forfeited, the Class B Common
Stock may not be reissued by AIMCO.
The Eligible Class B Shares convert to Class A Common Stock if (i) AIMCO's
Funds from Operations Per Share (as defined below) reaches certain annual and
cumulative growth targets and (ii) the average market price for a share of Class
A Common Stock for a 90 calendar day period beginning on any day on or after the
October 1 immediately preceding the relevant Year-End Testing Date equals or
exceeds a specified target price. "Funds from Operations Per Share" or "FFO Per
Share" means, for any period, (i) net income (loss), computed in accordance with
generally accepted accounting principles, excluding gains (or losses) from debt
restructuring and sales of property, plus depreciation and amortization, and
after adjustments for unconsolidated partnerships and joint ventures, less any
preferred stock dividend payments, divided by (ii) the sum of (a) the number of
shares of the Class A Common Stock outstanding on the last day of such period
(excluding any shares of the Class A Common Stock into which shares of the Class
B Common Stock shall have been converted as a result of the conversion of shares
of the Class B Common Stock on the last day of such period) and (b) the number
of shares of the Class A Common Stock issuable to acquire units of limited
partnership that (x) may be tendered for redemption in any limited partnership
in which AIMCO serves as general partner and (y) are outstanding on the last day
of such period.
Set forth below for each of the remaining Year-End Testing Dates is (i) the
number of shares of Class B Common Stock that become Eligible Class B Shares as
of such date, (ii) the annual FFO Per Share growth target (as a percentage
increase in FFO Per Share from the prior year), (iii) the cumulative FFO Per
Share growth target (in FFO Per Share) and (iv) the average market price target:
<TABLE>
<CAPTION>
ANNUAL FFO PER CUMULATIVE FFO PER
ELIGIBLE CLASS B SHARE GROWTH SHARE GROWTH AVERAGE MARKET
YEAR-END TESTING DATE SHARES(1) TARGET TARGET PRICE TARGET
--------------------- ---------------- -------------- ------------------ --------------
<S> <C> <C> <C> <C>
December 31, 1998........ 162,500 8.5% $2.760 $26.373
</TABLE>
- ---------------
(1) Assumes that only the shares of Class B Common Stock outstanding as of
December 31, 1997 remain outstanding until converted into shares of Class A
Common Stock.
Any Class B Common Stock that has not been converted into Class A Common
Stock following December 31, 1998 will be subject to repurchase by AIMCO at a
price of $0.10 per share. Class B Common Stock is also subject to automatic
conversion upon the occurrence of certain events, including a change of control
(as defined in the Charter). The AIMCO Board may increase the number of shares
which are eligible for conversion as of any Year-End Testing Date and may, under
certain circumstances, accelerate the
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<PAGE> 35
conversion of outstanding Class B Common Stock at such time and in such amount
as it may determine appropriate.
All of the 65,000 shares of Class B Common Stock eligible for conversion as
of the December 31, 1994 Year-End Testing Date, all of the 130,000 shares of
Class B Common Stock eligible for conversion as of the December 31, 1995
Year-End Testing Date, all of the 130,000 shares of Class B Common Stock
eligible for conversion as of December 31, 1996 and all of the 162,500 shares of
Class B Common Stock eligible for conversion as of December 31, 1997, have been
converted into shares of Class A Common Stock. As of October 1, 1998, the
outstanding Class B Common Stock was held as follows: 93,428 shares by Mr.
Considine, 41,438 shares by Mr. Kompaniez, 13,821 shares by Mr. Ira and 13,813
shares by Mr. Lacy.
DESCRIPTION OF WARRANTS
GENERAL
AIMCO may issue, together with other Securities registered herein or
separately, warrants for the purchase of Debt Securities, Preferred Stock or
Class A Common Stock (the "Warrants"). The Warrants may be issued under a
Warrant Agreement (each, a "Warrant Agreement") to be entered into between AIMCO
and a bank or trust company, as warrant agent (the "Warrant Agent"), as set
forth in the applicable Prospectus Supplement relating to any or all Warrants in
respect of which this Prospectus is being delivered. The Warrant Agent will act
solely as an agent of AIMCO in connection with the Warrants of a particular
series and will not assume any obligation or relationship of agency or trust for
or with any holders or beneficial owners of Warrants. The Warrant Agreement for
each Warrant, including the forms of certificates representing the Warrants
("Warrant Certificates"), will be filed as an exhibit to, or incorporated by
reference in, the Registration Statement of which this Prospectus forms a part
at or prior to the time of the issuance of such Warrants.
The following description sets forth certain general terms and provisions
of the Warrants to which any Prospectus Supplement may relate. The particular
terms of the Warrants to which any Prospectus Supplement may relate and the
extent, if any, to which such general provisions may apply to the Warrants so
offered will be described in the applicable Prospectus Supplement. Capitalized
terms used in this section which are not otherwise defined in this Prospectus
shall have the meanings set forth in the Warrant Agreement and Warrant
Certificate. The following summary of the material provisions of the Warrants,
Warrant Agreement and Warrant Certificate does not purport to be complete and is
subject to, and is qualified in its entirety by express reference to, all the
provisions of the Warrant Agreement and Warrant Certificate, including the
definitions therein of certain terms.
Reference is made to the applicable Prospectus Supplement for the terms of
Warrants in respect of which this Prospectus is being delivered, the Warrant
Agreement relating to such Warrants and the Warrant Certificates representing
such Warrants, including the following: (i) the designation, aggregate principal
amount and terms of the Debt Securities of AIMCO or the designation and terms of
the Preferred Stock, if any, purchasable upon exercise of such Warrants; (ii)
the procedures and conditions relating to the exercise of such Warrants; (iii)
the designation and terms of any related Securities with which such Warrants are
issued and the number of such Warrants issued with each such Security; (iv) the
date, if any, on and after which such Warrants and the related Securities will
be separately transferable; (v) the offering price of the Warrants, if any; (vi)
the principal amount of Debt Securities of AIMCO or the number of shares of
Preferred Stock or Common Stock purchasable upon exercise of each Warrant and
the price at which such principal amount of Debt Securities of AIMCO or shares
of Preferred Stock or Class A Common Stock may be purchased upon such exercise,
or the method of determining such number and price; (vii) the date on which the
right to exercise such Warrants shall commence and the date on which such right
shall expire; (viii) a discussion of United States Federal income tax
considerations applicable to the ownership or exercise of such Warrants; (ix)
whether the Warrants represented by the Warrant Certificates will be issued in
registered or bearer form,
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<PAGE> 36
and, if registered, where they may be transferred and registered; (x) call
provisions of such Warrants, if any; and (xi) any other terms of the Warrants.
Warrant Certificates will be exchangeable for new Warrant Certificates of
different denominations and Warrants may be exercised at the corporate trust
office of the Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the Securities
purchasable upon such exercise and will not be entitled to payments of principal
of (or premium, if any) or interest, if any, on the Debt Securities of AIMCO
purchasable upon such exercise or to any dividend payments or voting rights that
holders of the Preferred Stock or Common Stock purchasable upon such exercise
may be entitled to.
Each Warrant will entitle the holder to purchase for cash such principal
amount of Debt Securities of AIMCO, or such number of shares of Preferred Stock
or Class A Common Stock, at such exercise price as shall, in each case, be set
forth in, or be determinable as set forth in, the applicable Prospectus
Supplement relating to the Warrants offered thereby. Unless otherwise specified
in the applicable Prospectus Supplement, Warrants may be exercised at any time
up to 5:00 p.m. New York City time on the expiration date set forth in the
applicable Prospectus Supplement. After 5:00 p.m. New York City time on the
expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Warrants. Upon receipt of payment and the Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent on any other office indicated in the applicable Prospectus
Supplement, AIMCO will, as soon as practicable, forward the Securities
purchasable upon such exercise. If less than all of the Warrants represented by
such Warrant Certificate are exercised, a new Warrant Certificate will be issued
for the remaining amount of Warrants.
PLAN OF DISTRIBUTION
AIMCO or the AIMCO Operating Partnership may sell the Securities to one or
more underwriters for public offering and sale by them or may sell the
Securities to investors directly or through agents or dealers. Any such
underwriter, agent or dealer involved in the offer and sale of the Securities
will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to the prevailing market prices at the time of
sale or at negotiated prices. AIMCO or the AIMCO Operating Partnership also may,
from time to time, authorize underwriters acting as AIMCO's or the AIMCO
Operating Partnership's agents to offer and sell the Securities upon the terms
and conditions set forth in the applicable Prospectus Supplement. In connection
with the sale of Securities, underwriters may be deemed to have received
compensation from AIMCO or the AIMCO Operating Partnership in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Securities for whom they may act as agent. Underwriters may sell
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions (which may be changed from
time to time) from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by AIMCO or the AIMCO Operating
Partnership to underwriters or agents in connection with the offering of
Securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be underwriters under the
Securities Act, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions under the Securities Act. Underwriters,
dealers and agents may be entitled under agreements entered into with AIMCO or
the AIMCO Operating Partnership, to indemnification against and contribution
toward certain civil liabilities, including liabilities under the Securities
Act.
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<PAGE> 37
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, AIMCO or the AIMCO Operating Partnership will sell
such Securities to such dealer, as principal. The dealer may then resell such
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
If so indicated in the applicable Prospectus Supplement, AIMCO or the AIMCO
Operating Partnership will authorize dealers acting as AIMCO's or the AIMCO
Operating Partnership's agents to solicit offers by certain institutions to
purchase Securities from AIMCO or the AIMCO Operating Partnership at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the aggregate principal amount or number of Securities
sold pursuant to Contracts shall not be less nor more than, the respective
amounts or numbers stated in the applicable Prospectus Supplement. Institutions
with whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions, but will, in all cases, be
subject to the approval of AIMCO or the AIMCO Operating Partnership. Such
Contracts will not be subject to any conditions except (a) the purchase by an
institution of the Securities covered by its Contracts shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject and (b) if the Securities are being sold to
underwriters, AIMCO or the AIMCO Operating Partnership shall have sold to such
underwriters the total principal amount or number of the Securities less the
principal amount or number thereof covered by the Contracts. The Prospectus
Supplement will set forth the commission payable for solicitation of such
Contracts. Agents and underwriters will have no responsibility in respect of the
delivery or performance of Contracts.
Until the distribution of the Securities offered pursuant to any Prospectus
Supplement is completed, the Commission's rules may limit the ability of any
underwriter participating in such distribution to bid for and purchase the
Securities offered thereby and other securities of AIMCO or the AIMCO Operating
Partnership. As an exception to these rules, the underwriters are permitted to
engage in certain transactions that stabilize or maintain the price of such
securities. Such transactions consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of such securities. If any such
underwriter creates a short position in such securities in connection with the
offering, such underwriter may reduce such short position by purchasing
securities.
In general, bids for or purchases of a security for the purpose of
stabilization or to reduce a short position could cause the price of the
security to be higher than it might otherwise be in the absence of such bids or
purchases.
Neither AIMCO nor the AIMCO Operating Partnership nor any underwriter
participating in any distribution makes any representation or prediction as to
the direction or magnitude of any effect that the transactions described above
may have on the price of the offered Securities or other securities of AIMCO or
the AIMCO Operating Partnership. In addition, neither AIMCO nor the AIMCO
Operating Partnership nor any such underwriter makes any representation that
such underwriter will engage in such transactions or that such transactions,
once commenced, will not be discontinued without notice.
Certain of the underwriters, if any, and their affiliates may be customers
of, engage in transactions with and perform services for AIMCO or the AIMCO
Operating Partnership in the ordinary course of business.
The Securities may or may not be listed on a national securities exchange.
No assurances can be given that there will be a market for any of the
Securities.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of certain federal income tax consequences
resulting from the acquisition of, holding, exchanging, and otherwise disposing
of Securities. This discussion is based upon the Code, regulations promulgated
by the U.S. Treasury Department (the "Treasury Regulations"), rulings issued by
the Internal Revenue Service (the "IRS"), and judicial decisions, all in effect
as of the date of this Prospectus and all of which are subject to change,
possibly retroactively. Such summary is also based on the assumptions that the
operation of AIMCO, the AIMCO Operating Partnership and the Subsidiary
Partnerships will be in accordance with their respective organizational
documents and partnership agreements. This summary is for general information
only and does not purport to discuss all aspects of federal income taxation
which may be important to a particular investor in light of its investment or
tax circumstances, or to certain types of investors subject to special tax rules
(including financial institutions, broker-dealers, insurance companies, and,
except to the extent discussed below, tax-exempt organizations and foreign
investors, as determined for United States federal income tax purposes). This
summary assumes that investors will hold their Securities as "capital assets"
(generally, property held for investment). No advance ruling has been or will be
sought from the IRS regarding any matter discussed in this Prospectus.
THE FEDERAL INCOME TAX TREATMENT OF HOLDERS OF SECURITIES DEPENDS IN SOME
INSTANCES ON DETERMINATIONS OF FACT AND INTERPRETATIONS OF COMPLEX PROVISIONS OF
FEDERAL INCOME TAX LAW FOR WHICH NO CLEAR PRECEDENT OR AUTHORITY MAY BE
AVAILABLE. ACCORDINGLY, EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS TAX ADVISOR
REGARDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF ACQUIRING,
HOLDING, EXCHANGING, OR OTHERWISE DISPOSING OF SECURITIES AND OF AIMCO'S
ELECTION TO BE SUBJECT TO TAX, FOR FEDERAL INCOME TAX PURPOSES, AS A REAL ESTATE
INVESTMENT TRUST.
GENERAL
The REIT provisions of the Code are highly technical and complex. The
following summary sets forth certain aspects of the provisions of the Code that
govern the federal income tax treatment of a REIT and its stockholders. This
summary is qualified in its entirety by the applicable Code provisions, Treasury
Regulations, and administrative and judicial interpretations thereof, all of
which are subject to change, possibly retroactively.
AIMCO has elected to be taxed as a REIT under the Code commencing with its
taxable year ending December 31, 1994, and AIMCO intends to continue such
election. In the opinion of Skadden, Arps, Slate, Meagher & Flom LLP
("Counsel"), commencing with the AIMCO's initial taxable year ended December 31,
1994, AIMCO was organized in conformity with the requirements for qualification
as a REIT, and its proposed method of operation, and its actual method of
operation since its formation, will enable it to meet the requirements for
qualification and taxation as a REIT under the Code. It must be emphasized that
this opinion is based and conditioned upon certain assumptions and
representations made by AIMCO as to factual matters (including representations
of AIMCO concerning its business and properties as set forth in this
Prospectus). The opinion is expressed as of its date and Counsel has no
obligation to advise holders of Securities of any subsequent change in the
matters stated, represented or assumed or any subsequent change in the
applicable law. Moreover, such qualification and taxation as a REIT depends upon
AIMCO's ability to meet, through actual annual operating results, distribution
levels and diversity of stock ownership, the various qualification tests imposed
under the Code as discussed below, the results of which will not be reviewed by
Counsel. Accordingly, no assurance can be given that the actual results of
AIMCO's operation for any tax year will satisfy such requirements. See
"-- Failure to Qualify." An opinion of counsel is not binding on the IRS, and no
assurance can be given that the IRS will not challenge AIMCO's eligibility for
taxation as a REIT.
Provided AIMCO qualifies for taxation as a REIT, it will generally not be
subject to federal corporate income tax on its net income that is currently
distributed to its stockholders. This treatment substantially eliminates the
"double taxation" (at the corporate and stockholder levels) that generally
results from
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investment in a corporation. However, notwithstanding AIMCO's qualification as a
REIT, AIMCO will be subject to federal income tax as follows: First, AIMCO will
be taxed at regular corporate rates on any undistributed REIT taxable income,
including undistributed net capital gains. Second, under certain circumstances,
AIMCO may be subject to the "alternative minimum tax" on its items of tax
preference. Third, if AIMCO has net income from prohibited transactions (which
are, in general, certain sales or other dispositions of property held primarily
for sale to customers in the ordinary course of business other than foreclosure
property), such income will be subject to a 100% tax. Fourth, if AIMCO should
fail to satisfy the 75% gross income test or the 95% gross income test (as
discussed below), but has nonetheless maintained its qualification as a REIT
because certain other requirements have been met, it will be subject to a 100%
tax on an amount equal to (a) the gross income attributable to the greater of
the amount by which AIMCO fails the 75% or 95% test multiplied by (b) a fraction
intended to reflect AIMCO's profitability. Fifth, if AIMCO should fail to
distribute during each calendar year at least the sum of (i) 85% of its REIT
ordinary income for such year, (ii) 95% of its REIT capital gain net income for
such year (other than certain long-term capital gains that AIMCO elects to
retain and pay the tax thereon), and (iii) any undistributed taxable income from
prior periods, AIMCO would be subjected to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed. Sixth, if AIMCO
acquires assets from a subchapter C corporation in a transaction in which the
adjusted tax basis of the assets in the hands of AIMCO is determined by
reference to the adjusted tax basis of such assets in the hands of the
subchapter C corporation, under Treasury Regulations not yet promulgated, the
subchapter C corporation would be required to recognize any net Built-In Gain
(as defined below) that would have been realized if the Subchapter C corporation
had liquidated on the day before the date of the transfer. Pursuant to IRS
Notice 88-19, AIMCO may elect, in lieu of the treatment described above, to be
subject to tax if it recognizes gain on the disposition of any such assets
during the ten-year period beginning on the day on which it acquires such assets
at the highest regular corporate tax rate on such gain to the extent of the
excess, if any, of the fair market value over the adjusted basis of such asset
as of the beginning of the ten-year period ("Built-in Gain"). AIMCO intends to
make such an election and, therefore, will be taxed at the highest regular
corporate rate on such Built-in Gain if, and to the extent, such assets are sold
within the specified ten-year period. It should be noted that AIMCO has acquired
(and may in the future acquire) a significant amount of assets with Built-in
Gain and a taxable disposition by AIMCO of these assets within ten years of
their acquisitions would subject AIMCO to tax under the foregoing rule. Seventh,
AIMCO could be subject to foreign taxes on its investments and activities in
foreign jurisdictions. In addition, AIMCO could also be subject to tax in
certain situations and on certain transactions not presently contemplated.
Requirements for Qualification
The Code defines a REIT as a corporation, trust or association (1) that is
managed by one or more trustees or directors; (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (3) which would be taxable as a domestic corporation, but
for the special Code provisions applicable to REITs; (4) that is neither a
financial institution nor an insurance company subject to certain provisions of
the Code; (5) the beneficial ownership of which is held by 100 or more persons;
(6) in which, during the last half of each taxable year, not more than 50% in
value of the outstanding stock is owned, directly or indirectly, by five or
fewer individuals (as defined in the Code to include certain entities); and (7)
which meets certain other tests described below (including with respect to the
nature of its income and assets). The Code provides that conditions (1) through
(4) must be met during the entire taxable year, and that condition (5) must be
met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. AIMCO's Charter
provides certain restrictions regarding transfers of its shares, which
provisions are intended to assist AIMCO in satisfying the share ownership
requirements described in conditions (5) and (6) above.
To monitor AIMCO's compliance with the share ownership requirements, AIMCO
is required to maintain records regarding the actual ownership of its shares. To
do so, AIMCO must demand written statements each year from the record holders of
certain percentages of its stock in which the record holders are to disclose the
actual owners of the shares (i.e., the persons required to include in gross
income the dividends paid by AIMCO). A list of those persons failing or refusing
to comply with this demand must be maintained
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as part of AIMCO's records. A stockholder who fails or refuses to comply with
the demand must submit a statement with its tax return disclosing the actual
ownership of the shares and certain other information.
In addition, a corporation may not elect to become a REIT unless its
taxable year is the calendar year. AIMCO satisfies this requirement.
Ownership of Partnership Interests
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT is deemed to own its proportionate share of
the partnership's assets and to earn its proportionate share of the
partnership's income. In addition, the assets and gross income of the
partnership retain the same character in the hands of the REIT for purposes of
the gross income and asset tests applicable to REITs as described below. Thus,
AIMCO's proportionate share of the assets, liabilities and items of income of
the Subsidiary Partnerships in which it has ownership interests will be treated
as assets, liabilities and items of income of AIMCO for purposes of applying the
REIT requirements described herein. A summary of certain rules governing the
federal income taxation of partnerships and their partners is provided below in
"Tax Aspects of AIMCO's Investments in Partnerships."
Income Tests
In order to maintain qualification as a REIT, AIMCO annually must satisfy
two gross income requirements. First, at least 75% of AIMCO's gross income
(excluding gross income from "prohibited transactions," i.e., certain sales of
property held primarily for sale to customers in the ordinary course of
business) for each taxable year must be derived directly or indirectly from
investments relating to real property or mortgages on real property (including
"rents from real property" and, in certain circumstances, interest) or from
certain types of temporary investments. Second, at least 95% of AIMCO's gross
income (excluding gross income from prohibited transactions) for each taxable
year must be derived from such real property investments, and from dividends,
interest and gain from the sale or disposition of stock or securities (or from
any combination of the foregoing).
Rents received by AIMCO through the Subsidiary Partnerships will qualify as
"rents from real property" in satisfying the gross income requirements described
above, only if several conditions are met, including the following. If rent
attributable to personal property leased in connection with a lease of real
property is greater than 15% of the total rent received under the lease, then
the portion of rent attributable to such personal property will not qualify as
"rents from real property." Moreover, for rents received to qualify as "rents
from real property," the REIT generally must not operate or manage the property
or furnish or render services to the tenants of such property, other than
through an "independent contractor" from which the REIT derives no revenue.
However, AIMCO (or its affiliates) is permitted to directly perform services
that are "usually or customarily rendered" in connection with the rental of
space for occupancy only and are not otherwise considered rendered to the
occupant of the property. In addition, AIMCO (or its affiliates) may provide
non-customary services to tenants of its properties without disqualifying all of
the rent from the property if the payment for such services does not exceed 1%
of the total gross income from the property. For purposes of this test, the
income received from such non-customary services is deemed to be at least 150%
of the direct cost of providing the services.
Various affiliates of AIMCO that manage the Managed Properties
(collectively, the "Management Subsidiaries") receive management fees and other
income. A portion of such fees and other income accrue to AIMCO through
distributions from the Management Subsidiaries that will be classified as
dividend income to the extent of the earnings and profits of the Management
Subsidiaries. Such distributions will generally qualify under the 95% gross
income test but not under the 75% gross income test.
If AIMCO fails to satisfy one or both of the 75% or 95% gross income tests
for any taxable year, it may nevertheless qualify as a REIT for such year if it
is entitled to relief under certain provisions of the Code. These relief
provisions will be generally available if AIMCO's failure to meet such tests was
due to reasonable cause and not due to willful neglect, AIMCO attaches a
schedule of the sources of its income to its return, and any incorrect
information on the schedule was not due to fraud with intent to evade tax. It is
not possible,
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however, to state whether in all circumstances AIMCO would be entitled to the
benefit of these relief provisions. If these relief provisions are inapplicable
to a particular set of circumstances involving AIMCO, AIMCO will not qualify as
a REIT. As discussed above in "-- General," even where these relief provisions
apply, a tax is imposed with respect to the excess net income.
Asset Tests
AIMCO, at the close of each quarter of its taxable year, must also satisfy
three tests relating to the nature of its assets. First, at least 75% of the
value of AIMCO's total assets must be represented by real estate assets
(including its allocable share of real estate assets held by the Subsidiary
Partnerships), certain stock or debt instruments purchased by AIMCO with new
capital, cash, cash items and U.S. government securities. Second, not more than
25% of AIMCO's total assets may be represented by securities other than those in
the 75% asset class. Third, of the investments included in the 25% asset class,
the value of any one issuer's securities owned by AIMCO may not exceed 5% of the
value of AIMCO's total assets, and AIMCO may not own more than 10% of any one
issuer's outstanding voting securities.
AIMCO indirectly owns interests in the Management Subsidiaries. As set
forth above, the ownership of more than 10% of the voting securities of any one
issuer by a REIT or the investment of more than 5% of the REIT's total assets in
any one issuer's securities is prohibited by the asset tests. AIMCO believes
that its indirect ownership interests in the Management Subsidiaries qualify
under the asset tests set forth above. However, no independent appraisals have
been obtained to support AIMCO's conclusions as to the value of the AIMCO
Operating Partnership's total assets and the value of the AIMCO Operating
Partnership's interest in the Management Subsidiaries and these values are
subject to change in the future. Accordingly, there can be no assurance that the
IRS will not contend that the AIMCO Operating Partnership's ownership interests
in the Management Subsidiaries disqualifies AIMCO from treatment as a REIT.
AIMCO's indirect interests in the AIMCO Operating Partnership and other
Subsidiary Partnerships are held through wholly owned corporate subsidiaries of
AIMCO organized and operated as "qualified REIT subsidiaries" within the meaning
of the Code. Qualified REIT subsidiaries are not treated as separate entities
from their parent REIT for federal income tax purposes. Instead, all assets,
liabilities and items of income, deduction and credit of each qualified REIT
subsidiary are treated as assets, liabilities and items of AIMCO. Each qualified
REIT subsidiary therefore is not subject to federal corporate income taxation,
although it may be subject to state or local taxation. In addition, AIMCO's
ownership of the voting stock of each qualified REIT subsidiary does not violate
the general restriction against ownership of more than 10% of the voting
securities of any issuer.
Annual Distribution Requirements
AIMCO, in order to qualify as a REIT, is required to distribute dividends
(other than capital gain dividends) to its stockholders in an amount at least
equal to (A) the sum of (i) 95% of AIMCO's "REIT taxable income" (computed
without regard to the dividends paid deduction and AIMCO's net capital gain) and
(ii) 95% of the net income (after tax), if any, from foreclosure property, minus
(B) the sum of certain items of noncash income. Such distributions must be paid
in the taxable year to which they relate, or in the following taxable year if
declared before AIMCO timely files its tax return for such year and if paid with
or before the first regular dividend payment after such declaration. To the
extent that AIMCO distributes at least 95%, but less than 100%, of its "REIT
taxable income," as adjusted, it will be subject to tax thereon at ordinary
corporate tax rates. AIMCO may elect to retain, rather than distribute, its net
long-term capital gains and pay tax on such gains. In such a case, AIMCO's
stockholders would include their proportionate share of such undistributed
long-term capital gains in income and receive a credit for their share of the
tax paid by AIMCO. AIMCO's stockholders would then increase the adjusted basis
of their AIMCO shares by the difference between the designated amounts included
in their long-term capital gains and the tax deemed paid with respect to their
shares. If AIMCO should fail to distribute during each calendar year at least
the sum of (i) 85% of its REIT ordinary income for such year and (ii) 95% of its
REIT capital gain net income for such year (excluding retained long-term capital
gains), and (iii) any undistributed taxable income from prior periods, AIMCO
would be subject to a 4% excise tax on the excess of such required distribution
over the
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amounts actually distributed. AIMCO believes that it has made, and intends to
make, timely distributions sufficient to satisfy this annual distribution
requirement.
It is possible that AIMCO, from time to time, may not have sufficient cash
to meet the 95% distribution requirement due to timing differences between (i)
the actual receipt of cash (including receipt of distributions from the AIMCO
Operating Partnership) and (ii) the inclusion of certain items in income by
AIMCO for federal income tax purposes. In the event that such timing differences
occur, in order to meet the 95% distribution requirement, AIMCO may find it
necessary to arrange for short-term, or possibly long-term, borrowings or to pay
dividends in the form of taxable distributions of property.
Under certain circumstances, AIMCO may be able to rectify a failure to meet
the distribution requirement for a year by paying "deficiency dividends" to
stockholders in a later year, which may be included in AIMCO's deduction for
dividends paid for the earlier year. Thus, AIMCO may be able to avoid being
taxed on amounts distributed as deficiency dividends; however, AIMCO will be
required to pay interest and a penalty based on the amount of any deduction
taken for deficiency dividends.
Distributions of Acquired Earnings and Profits
The Code provides that when a REIT acquires a corporation that is currently
a subchapter C corporation (i.e., a corporation without a REIT election), the
REIT may qualify as a REIT only if, as of the close of the year of acquisition,
the REIT has no "earnings and profits" acquired from such subchapter C
corporation. If AIMCO succeeds to the earnings and profits of a subchapter C
corporation in connection with an acquisition of its assets or otherwise, AIMCO
must distribute such earnings and profits effective on or before December 31, of
the year of such acquisition. Any adjustments to the subchapter C corporation's
income for taxable years ending on or before the closing of such acquisition by
AIMCO, including as a result of an examination of its returns by the IRS and the
receipt of certain indemnity or other payments, could affect the calculation of
its earnings and profits. Furthermore, the determination of earnings and profits
requires the resolution of certain technical tax issues with respect to which
there is no authority directly on point and, consequently, the proper treatment
of these issues for earnings and profits purposes is not free from doubt. There
can be no assurance that the IRS will not examine the tax returns of a
subchapter C corporation acquired by AIMCO and propose adjustments to increase
its taxable income and therefore its earnings and profits. In this regard, the
IRS can consider all taxable years of the subchapter C corporation as open for
review for purposes of determining the amount of its earnings and profits.
AIMCO's failure to distribute an amount equal to the earnings and profits
acquired from a subchapter C corporation effective on or before December 31, of
the year of such acquisition, would result in AIMCO's failure to qualify as a
REIT.
Failure to Qualify
If AIMCO fails to qualify for taxation as a REIT in any taxable year, and
the relief provisions do not apply, AIMCO will be subject to tax (including any
applicable alternative minimum tax) on its taxable income at regular corporate
rates. Distributions to stockholders in any year in which AIMCO fails to qualify
will not be deductible by AIMCO nor will they be required to be made. In such
event, to the extent of current and accumulated earnings and profits, all
distributions to stockholders will be taxable as ordinary income, and, subject
to certain limitations of the Code, corporate distributees may be eligible for
the dividends received deduction. Unless AIMCO is entitled to relief under
specific statutory provisions, AIMCO would also be disqualified from taxation as
a REIT for the four taxable years following the year during which qualification
was lost. It is not possible to state whether in all circumstances AIMCO would
be entitled to such statutory relief.
TAX ASPECTS OF AIMCO'S INVESTMENTS IN PARTNERSHIPS
General
Substantially all of AIMCO's investments are held indirectly through the
AIMCO Operating Partnership. In general, partnerships are "pass-through"
entities that are not subject to federal income tax. Rather, partners are
allocated their proportionate shares of the items of income, gain, loss,
deduction and credit of a partnership, and are potentially subject to tax
thereon, without regard to whether the partners receive a
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distribution from the partnership. AIMCO will include in its income its
proportionate share of the foregoing partnership items for purposes of the
various REIT income tests and in the computation of its REIT taxable income.
Moreover, for purposes of the REIT asset tests, AIMCO will include its
proportionate share of assets held by the Subsidiary Partnerships. See
"-- Certain Federal Income Tax Consequences -- General -- Ownership of
Partnership Interests."
Entity Classification
AIMCO's direct and indirect investment in partnerships involves special tax
considerations, including the possibility of a challenge by the IRS of the
status of any of the Subsidiary Partnerships as a partnership (as opposed to an
association taxable as a corporation) for federal income tax purposes. If any of
these entities were treated as an association for federal income tax purposes,
it would be subject to an entity-level tax on its income. In such a situation,
the character of AIMCO's assets and items of gross income would change and could
preclude AIMCO from satisfying the asset tests and the income tests (see
"-- Certain Federal Income Tax Consequences -- Asset Tests" and "-- Certain
Federal Income Tax Consequences -- Income Tests"), and in turn could prevent
AIMCO from qualifying as a REIT. See "-- Certain Federal Income Tax
Consequences -- Failure to Qualify" above for a discussion of the effect of
AIMCO's failure to meet such tests for a taxable year. In addition, any change
in the status of any of the Subsidiary Partnerships for tax purposes might be
treated as a taxable event, in which case AIMCO might incur a tax liability
without any related cash distributions.
Tax Allocations with Respect to the Properties
Under the Code and the Treasury Regulations, income, gain, loss and
deduction attributable to appreciated or depreciated property that is
contributed to a partnership in exchange for an interest in the partnership must
be allocated in a manner such that the contributing partner is charged with, or
benefits from, respectively, the unrealized gain or unrealized loss associated
with the property at the time of the contribution. The amount of such unrealized
gain or unrealized loss is generally equal to the difference between the fair
market value of the contributed property at the time of contribution, and the
adjusted tax basis of such property at the time of contribution (a "Book - Tax
Difference"). Such allocations are solely for federal income tax purposes and do
not affect the book capital accounts or other economic or legal arrangements
among the partners. The AIMCO Operating Partnership was formed by way of
contributions of appreciated property (including certain of the properties AIMCO
owns or controls). Consequently, allocations must be made in a manner consistent
with these requirements. Where a partner contributes cash to a partnership that
holds appreciated property, the Treasury Regulations provide for a similar
allocation of such items to the other partners. These rules apply to the
contribution by AIMCO to the AIMCO Operating Partnership of the cash proceeds
received in any offerings of its stock.
In general, certain holders of interests in the AIMCO Operating Partnership
will be allocated lower amounts of depreciation deductions for tax purposes and
increased taxable income and gain on the sale by the AIMCO Operating Partnership
or other Subsidiary Partnerships of the contributed properties. This will tend
to eliminate the Book-Tax Difference over the life of these partnerships.
However, the special allocations do not always entirely rectify the Book-Tax
Difference on an annual basis or with respect to a specific taxable transaction
such as a sale. Thus, the carryover basis of the contributed properties in the
hands of the AIMCO Operating Partnership or other Subsidiary Partnerships may
cause AIMCO to be allocated lower depreciation and other deductions, and
possibly greater amounts of taxable income in the event of a sale of such
contributed assets in excess of the economic or book income allocated to it as a
result of such sale. This may cause AIMCO to recognize taxable income in excess
of cash proceeds, which might adversely affect AIMCO's ability to comply with
the REIT distribution requirements. See "-- Certain Federal Income Tax
Consequences -- Annual Distribution Requirements."
With respect to any property purchased or to be purchased by any of the
Subsidiary Partnerships (other than through the issuance of AIMCO Operating
Partnership Units) subsequent to the formation of AIMCO, such property will
initially have a tax basis equal to its fair market value and the special
allocation provisions described above will not apply.
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Sale of the Properties
AIMCO's share of any gain realized by the AIMCO Operating Partnership or
other Subsidiary Partnership on the sale of any property held as inventory or
primarily for sale to customers in the ordinary course of business will be
treated as income from a prohibited transaction that is subject to a 100%
penalty tax. See "-- Certain Federal Income Tax Consequences -- General." Under
existing law, whether property is held as inventory or primarily for sale to
customers in the ordinary course of a partnership's trade or business is a
question of fact that depends on all the facts and circumstances with respect to
the particular transaction. The AIMCO Operating Partnership and the other
Subsidiary Partnerships intend to hold the Owned Properties for investment with
a view to long-term appreciation, to engage in the business of acquiring,
developing, owning and operating the Owned Properties and to make such
occasional sales of the Owned Properties, including peripheral land, as are
consistent with AIMCO's investment objectives.
TAXATION OF MANAGEMENT SUBSIDIARIES
A portion of the amounts to be used to fund distributions to stockholders
is expected to come from distributions made by the Management Subsidiaries to
the AIMCO Operating Partnership and interest paid by the Management Subsidiaries
on certain notes held by the AIMCO Operating Partnership. In general, the
Management Subsidiaries pay federal, state and local income taxes on their
taxable income at normal corporate rates. Any federal, state or local income
taxes that the Management Subsidiaries are required to pay will reduce AIMCO's
cash flow from operating activities and its ability to make payments to holders
of its securities.
TAXATION OF TAXABLE DOMESTIC STOCKHOLDERS
Distributions
Provided AIMCO qualifies as a REIT, distributions made to AIMCO's taxable
domestic stockholders out of current or accumulated earnings and profits (and
not designated as capital gain dividends) will be taken into account by them as
ordinary income and will not be eligible for the dividends received deduction
for corporations. Distributions (and retained long-term capital gains) that are
designated as capital gain dividends will be taxed as long-term capital gains
(to the extent that they do not exceed AIMCO's actual net capital gain for the
taxable year) without regard to the period for which the stockholder has held
its stock. However, corporate stockholders may be required to treat up to 20% of
certain capital gain dividends as ordinary income. In addition, net capital
gains attributable to the sale of depreciable real property held for more than
12 months is subject to a 25% maximum federal income tax rate to the extent of
previously claimed real property depreciation deductions.
Distributions in excess of current and accumulated earnings and profits
will not be taxable to a stockholder to the extent that they do not exceed the
adjusted basis of the stockholder's shares in respect of which the distributions
were made, but rather will reduce the adjusted basis of such shares. To the
extent that such distributions exceed the adjusted basis of a stockholder's
shares in respect of which the distributions were made, they will be included in
income as long-term capital gain (or short-term capital gain if the shares have
been held for one year or less) provided that the shares are a capital asset in
the hands of the stockholder. In addition, any dividend declared by AIMCO in
October, November or December of any year and payable to a stockholder of record
on a specified date in any such month shall be treated as both paid by AIMCO and
received by the stockholder on December 31 of such year, provided that the
dividend is actually paid by AIMCO during January of the following calendar
year. Stockholders may not include in their individual income tax returns any
net operating losses or capital losses of AIMCO.
Dispositions of AIMCO Stock
In general, under the recently enacted Internal Revenue Service
Restructuring and Reform Act of 1988, capital gains recognized by individuals
and other non-corporate stockholders upon the sale or disposition of shares of
AIMCO stock will be subject to a maximum federal income tax rate of 20% if the
AIMCO stock is held for more than 12 months and will be taxed at ordinary income
rates if the AIMCO stock is held for
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12 months or less. Capital losses recognized by a stockholder upon the
disposition of AIMCO stock held for more than one year at the time of
disposition will be a long-term capital loss. In addition, any loss upon a sale
or exchange of shares of AIMCO stock by a stockholder who has held such shares
for six months or less (after applying certain holding period rules) will be
treated as a long-term capital loss to the extent of distributions from AIMCO
required to be treated by such stockholder as long-term capital gain.
A redemption of the Preferred Stock will be treated under Section 302 of
the Code as a dividend subject to tax at ordinary income tax rates (to the
extent of AIMCO's current or accumulated earnings and profits), unless the
redemption satisfies certain tests set forth in Section 302(b) of the Code
enabling the redemption to be treated as a sale or exchange of the Preferred
Stock. The redemption will satisfy such test if it (i) is "substantially
disproportionate" with respect to the holder (which will not be the case if only
the Preferred Stock is redeemed, since it generally does not have voting
rights), (ii) results in a "complete termination" of the holder's stock interest
in AIMCO, or (iii) is "not essentially equivalent to a dividend" with respect to
the holder, all within the meaning of Section 302(b) of the Code. In determining
whether any of these tests have been met, shares considered to be owned by the
holder by reason of certain constructive ownership rules set forth in the Code,
as well as shares actually owned, must generally be taken into account. Because
the determination as to whether any of the alternative tests of Section 302(b)
of the Code is satisfied with respect to any particular holder of the Preferred
Stock will depend upon the facts and circumstances as of the time the
determination is made, prospective investors are advised to consult their own
tax advisors to determine such tax treatment. If a redemption of the Preferred
Stock is treated as a distribution that is taxable as a dividend, the amount of
the distribution would be measured by the amount of cash and the fair market
value of any property received by the stockholders. The stockholder's adjusted
tax basis in such redeemed Preferred Stock would be transferred to the holder's
remaining stockholdings in AIMCO. If, however, the stockholder has no remaining
stockholdings in AIMCO, such basis may, under certain circumstances, be
transferred to a related person or it may be lost entirely.
TAXATION OF FOREIGN STOCKHOLDERS
The following is a discussion of certain anticipated U.S. federal income
and estate tax consequences of the ownership and disposition of AIMCO stock
applicable to Non-U.S. Holders of AIMCO stock. A "Non-U.S. Holder" is any person
other than (i) a citizen or resident of the United States, (ii) a corporation or
partnership created or organized in the United States or under the laws of the
United States or of any state thereof or the District of Columbia, (iii) an
estate whose income is includible in gross income for U.S. federal income tax
purposes regardless of its source or (iv) a trust if a United States court is
able to exercise primary supervision over the administration of such trust and
one or more United States fiduciaries have the authority to control all
substantial decisions of such trust. The discussion is based on current law and
is for general information only. The discussion addresses only certain and not
all aspects of U.S. federal income and estate taxation.
Ordinary Dividends
The portion of dividends received by Non-U.S. Holders payable out of
AIMCO's earnings and profits which are not attributable to capital gains of
AIMCO and which are not effectively connected with a U.S. trade or business of
the Non-U.S. Holder will be subject to U.S. withholding tax at the rate of 30%
(unless reduced by treaty). In general, Non-U.S. Holders will not be considered
engaged in a U.S. trade or business solely as a result of their ownership of
AIMCO stock. In cases where the dividend income from a Non-U.S. Holder's
investment in AIMCO stock is (or is treated as) effectively connected with the
Non-U.S. Holder's conduct of a U.S. trade or business, the Non-U.S. Holder
generally will be subject to U.S. tax at graduated rates, in the same manner as
U.S. Holders are taxed with respect to such dividends (and may also be subject
to the 30% branch profits tax in the case of a Non-U.S. Holder that is a
corporation).
Non-Dividend Distributions
Unless AIMCO stock constitutes a United States Real Property Interest (a
"USRPI") within the meaning of the Foreign Investment in Real Property Tax Act
of 1980 ("FIRPTA"), distributions by AIMCO
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which are not dividends out of the earnings and profits of AIMCO will not be
subject to U.S. income or withholding tax. If it cannot be determined at the
time a distribution is made whether or not such distribution will be in excess
of current and accumulated earnings and profits, the distribution will be
subject to withholding at the rate applicable to dividends. However, the
Non-U.S. Holder may seek a refund of such amounts from the IRS if it is
subsequently determined that such distribution was, in fact, in excess of
current and accumulated earnings and profits of AIMCO. If AIMCO stock
constitutes a USRPI, such distributions will be subject to 10% withholding and
may be taxed pursuant to FIRPTA at a rate of 35% to the extent such
distributions exceed a stockholder's basis in his or her AIMCO stock.
Capital Gain Dividends
Under FIRPTA, a distribution made by AIMCO to a Non-U.S. Holder, to the
extent attributable to gains from dispositions of USRPIs such as the properties
beneficially owned by AIMCO ("USRPI Capital Gains"), will be considered
effectively connected with a U.S. trade or business of the Non-U.S. Holder and
subject to U.S. income tax at the rates applicable to U.S. individuals or
corporations, without regard to whether such distribution is designated as a
capital gain dividend. In addition, AIMCO will be required to withhold tax equal
to 35% of the amount of dividends to the extent such dividends constitute USRPI
Capital Gains. Distributions subject to FIRPTA may also be subject to a 30%
branch profits tax in the hands of a Non-U.S. Holder that is a corporation.
Dispositions of AIMCO Stock
Unless AIMCO stock constitutes a USRPI, a sale of such stock by a Non-U.S.
Holder generally will not be subject to U.S. taxation under FIRPTA. The stock
will not constitute a USRPI if AIMCO is a "domestically controlled REIT." A
domestically controlled REIT is a REIT in which, at all times during a specified
testing period, less than 50% in value of its shares is held directly or
indirectly by Non-U.S. Holders. AIMCO believes that it is, and it expects to
continue to be, a domestically controlled REIT and, therefore, the sale of AIMCO
stock should not be subject to taxation under FIRPTA. Because AIMCO's Class A
Common Stock, Class C Preferred Stock, Class D Preferred Stock, Class G
Preferred Stock and Class H Preferred Stock are publicly traded, however, no
assurance can be given that AIMCO will continue to be a domestically controlled
REIT.
If AIMCO does not constitute a domestically controlled REIT, a Non-U.S.
Holder's sale of stock generally will still not be subject to tax under FIRPTA
as a sale of a USRPI provided that (i) the stock is "regularly traded" (as
defined by applicable Treasury Regulations) on an established securities market
(e.g., the NYSE, on which AIMCO stock is listed) and (ii) the selling Non-U.S.
Holder held 5% or less of AIMCO's outstanding stock at all times during a
specified testing period.
If gain on the sale of stock of AIMCO were subject to taxation under
FIRPTA, the Non-U.S. Holder would be subject to the same treatment as a U.S.
stockholder with respect to such gain (subject to applicable alternative minimum
tax and a special alternative minimum tax in the case of nonresident alien
individuals) and the purchaser of the stock could be required to withhold 10% of
the purchase price and remit such amount to the IRS.
Gain from the sale of AIMCO stock that would not otherwise be subject to
FIRPTA will nonetheless be taxable in the United States to a Non-U.S. Holder in
two cases: (i) if the Non-U.S. Holder's investment in the AIMCO stock is
effectively connected with a U.S. trade or business conducted by such Non-U.S.
Holder, the Non-U.S. Holder will be subject to the same treatment as a U.S.
stockholder with respect to such gain, or (ii) if the Non-U.S. Holder is a
nonresident alien individual who was present in the United States for 183 days
or more during the taxable year and has a "tax home" in the United States, the
nonresident alien individual will be subject to a 30% tax on the individual's
capital gain.
Estate Tax
AIMCO stock owned or treated as owned by an individual who is not a citizen
or resident (as specially defined for U.S. federal estate tax purposes) of the
United States at the time of death will be includible in the
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individual's gross estate for U.S. federal estate tax purposes, unless an
applicable estate tax treaty provides otherwise. Such individual's estate may be
subject to U.S. federal estate tax on the property includible in the estate for
U.S. federal estate tax purposes.
INFORMATION REPORTING REQUIREMENTS AND BACKUP WITHHOLDING
AIMCO will report to its U.S. stockholders and to the IRS the amount of
distributions paid during each calendar year, and the amount of tax withheld, if
any. Under the backup withholding rules, a stockholder may be subject to backup
withholding at the rate of 31% with respect to distributions paid unless such
holder (i) is a corporation or comes within certain other exempt categories and,
when required, demonstrates this fact or (ii) provides a taxpayer identification
number, certifies as to no loss of exemption from backup withholding, and
otherwise complies with the applicable requirements of the backup withholding
rules. A stockholder who does not provide AIMCO with his correct taxpayer
identification number also may be subject to penalties imposed by the IRS. Any
amount paid as backup withholding will be creditable against the stockholder's
income tax liability. In addition, AIMCO may be required to withhold a portion
of capital gain distributions to any Non-U.S. Holders who fail to certify their
foreign status to AIMCO. The IRS has issued final Treasury Regulations regarding
the withholding, backup withholding and information reporting rules as applied
to Non-U.S. Holders. Those final Treasury Regulations alter the current system
of backup withholding compliance and will be effective for payments made after
December 31, 1999. Prospective investors in Securities should consult their tax
advisors regarding the application of these Treasury Regulations.
TAXATION OF TAX-EXEMPT STOCKHOLDERS
Tax-exempt entities, including qualified employee pension and profit
sharing trusts and individual retirement accounts ("Exempt Organizations"),
generally are exempt from federal income taxation. However, they are subject to
taxation on their unrelated business taxable income ("UBTI"). While many
investments in real estate generate UBTI, the IRS has ruled that dividend
distributions from a REIT to an exempt employee pension trust do not constitute
UBTI, provided that the shares of the REIT are not otherwise used in an
unrelated trade or business of the exempt employee pension trust. Based on that
ruling, amounts distributed by AIMCO to Exempt Organizations should generally
not constitute UBTI. However, if an Exempt Organization finances its acquisition
of the AIMCO stock with debt, a portion of its income from AIMCO will constitute
UBTI pursuant to the "debt-financed property" rules. Furthermore, social clubs,
voluntary employee benefit associations, supplemental unemployment benefit
trusts, and qualified group legal services plans that are exempt from taxation
under paragraphs (7), (9), (17) and (20), respectively, of Section 501(c) of the
Code are subject to different UBTI rules, which generally will require them to
characterize distributions from AIMCO as UBTI. In addition, in certain
circumstances, a pension trust that owns more than 10% of AIMCO's stock is
required to treat a percentage of the dividends from AIMCO as UBTI (the "UBTI
Percentage"). The UBTI Percentage is the gross income derived by AIMCO from an
unrelated trade or business (determined as if AIMCO were a pension trust)
divided by the gross income of AIMCO for the year in which the dividends are
paid. The UBTI rule applies to a pension trust holding more than 10% of AIMCO's
stock only if (i) the UBTI Percentage is at least 5%, (ii) AIMCO qualifies as a
REIT by reason of the modification of the 5/50 Rule that allows the
beneficiaries of the pension trust to be treated as holding shares of AIMCO in
proportion to their actuarial interest in the pension trust, and (iii) either
(A) one pension trust owns more than 25% of the value of AIMCO's stock or (B) a
group of pension trusts each individually holding more than 10% of the value of
AIMCO's stock collectively owns more that 50% of the value of AIMCO's stock. The
restrictions on ownership and transfer of AIMCO's stock should prevent an Exempt
Organization from owning more than 10% of the value of AIMCO's stock.
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OTHER TAX CONSEQUENCES
POSSIBLE LEGISLATIVE OR OTHER ACTIONS AFFECTING REITS
The rules dealing with federal income taxation are constantly under review
by persons involved in the legislative process and by the IRS and the U.S.
Treasury Department. Changes to the federal laws and interpretations thereof
could adversely affect an investment in AIMCO or the AIMCO Operating
Partnership. For example, a proposal issued by President Clinton on February 2,
1998, if enacted into law, may adversely affect the ability of AIMCO to expand
the present activities of its Management Subsidiaries. It cannot be predicted
whether, when, in what forms, or with what effective dates, the tax laws
applicable to AIMCO or the AIMCO Operating Partnership, or an investment in
AIMCO or the AIMCO Operating Partnership, will be changed.
STATE, LOCAL AND FOREIGN TAXES
The AIMCO Operating Partnership and its partners and AIMCO and its
stockholders may be subject to state, local or foreign taxation in various
jurisdictions, including those in which it or they transact business, own
property or reside. It should be noted that the AIMCO Operating Partnership owns
properties located in a number of states and local jurisdictions, and the AIMCO
Operating Partnership may be required to file income tax returns in some or all
of those jurisdictions. The state, local or foreign tax treatment of the AIMCO
Operating Partnership and its partners and of AIMCO and its stockholders may not
conform to the federal income tax consequences discussed above. Consequently,
prospective investors should consult their own tax advisors regarding the
application and effect of state, local and foreign tax laws on an investment in
the Securities.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York, and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
- Apartment Investment and Management Company's Annual Report on Form
10-K/A for the year ended December 31, 1997;
- Apartment Investment and Management Company's Quarterly Reports on Form
10-Q/A and Form 10-Q for the quarters ended March 31, 1998, June 30, 1998
and September 30, 1998, respectively;
- Apartment Investment and Management Company's Current Reports on Form
8-K, dated December 23, 1997 (and Amendment No. 1 thereto filed February
6, 1998 and Amendment No. 2 thereto filed May 22, 1998), January 31,
1998, March 17, 1998 (and Amendment No. 1 thereto filed April 3, 1998,
Amendment No. 2 thereto filed June 22, 1998, Amendment No. 3 thereto
filed July 2, 1998, Amendment No. 4 thereto filed August 6, 1998,
Amendment No. 5 thereto filed September 4, 1998 and Amendment No. 6
thereto filed September 25, 1998), September 2, 1998, October 1, 1998,
October 19, 1998 and November 2, 1998 (and Amendment No. 1 thereto filed
November 24, 1998);
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- the description of Apartment Investment and Management Company's capital
stock contained in its Registration Statement on Form 8-A (File No.
1-13232) filed July 19, 1994, including any amendment or reports filed for
the purpose of updating such description;
- AIMCO Properties, L.P.'s Registration Statement on Form 10, dated
September 4, 1998, including Amendment No. 1 thereto filed October 16,
1998 and Amendment No. 2 thereto filed October 28, 1998; and
- AIMCO Properties, L.P.'s Current Report on Form 8-K, dated November 2,
1998.
You may request a copy of these filings, at no cost, by writing or calling
us at the following address and telephone number:
Corporate Secretary
Apartment Investment and Management Company
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
(303) 757-8101
LEGAL MATTERS
Certain tax matters will be passed upon for AIMCO by Skadden, Arps, Slate,
Meagher & Flom LLP. The validity of the Securities offered hereby will be passed
upon for AIMCO by Piper & Marbury L.L.P., Baltimore, Maryland and for the AIMCO
Operating Partnership by Skadden, Arps, Slate, Meagher & Flom LLP.
EXPERTS
The consolidated financial statements of AIMCO included in AIMCO's Annual
Report on Form 10-K/A for the year ended December 31, 1997, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. The consolidated
financial statements of the AIMCO Operating Partnership as of December 31, 1997
and 1996 and for each of the three years in the period ended December 31, 1997
included in the AIMCO Operating Partnership's Registration Statement on Form 10
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. The
consolidated financial statements of Ambassador Apartments, Inc. as of December
31, 1997 and 1996, and for each of the three years in the period ended December
31, 1997 included in AIMCO's Current Report on Form 8-K dated March 17, 1998 (as
amended on April 3, 1998), and the consolidated financial statements of
Ambassador Apartments, Inc. as of December 31, 1996 and 1995, and for each of
the two years in the period ended December 31, 1996 and the period from August
31, 1994 through December 31, 1994, and the combined financial statements of
Prime Properties (Predecessor to Ambassador Apartments, Inc.) for the period
from January 1, 1994 through August 30, 1994, included in Amendment No. 1 to
AIMCO's Current Report on Form 8-K dated December 23, 1997, filed on February 6,
1998, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their reports thereon included therein and incorporated herein by reference.
The consolidated financial statements of Insignia Financial Group, Inc. as of
December 31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997 included in AIMCO's Current Report on Form 8-K dated March 17,
1998 (and Amendment No. 1 thereto filed April 3, 1998), have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. The Combined Historical
Summary of Gross Income and Direct Operating Expenses of Cirque Apartment
Communities for the year ended December 31, 1997 included in AIMCO's Current
Report on Form 8-K dated November 2, 1998 (and Amendment No. 1 thereto filed
November 24, 1998) and included in AIMCO Properties, L.P.'s Current Report on
Form 8-K dated November 2, 1998 have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements and
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combined historical summary are incorporated herein by reference in reliance
upon such reports given upon the authority of such firm as experts in accounting
and auditing.
The Combined Historical Summary of Gross Income and Direct Operating
Expenses of Realty Investment Apartment Communities I for the year ended
December 31, 1997 included in AIMCO's Current Report on Form 8-K dated November
2, 1998 and included in AIMCO Properties, L.P.'s Current Report on Form 8-K
dated November 2, 1998 have been audited by Beers & Cutler PLLC, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. The Combined Historical Summary of Gross Income and Direct
Operating Expenses of Realty Investment Apartment Communities II for the year
ended December 31, 1997 included in AIMCO's Current Report on Form 8-K dated
November 2, 1998 and included in AIMCO Properties, L.P.'s Current Report on Form
8-K dated November 2, 1998 have been audited by Beers & Cutler PLLC, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such Combined Historical Summaries are incorporated herein
by reference in reliance upon such reports given upon the authority of such firm
as experts in accounting and auditing.
Any financial statements and schedules hereafter filed by AIMCO or the
AIMCO Operating Partnership pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act and incorporated herein by reference in this Prospectus that
have been examined and are the subject of a report by independent accountants
will be so incorporated herein by reference in reliance upon such reports given
and upon the authority of such firms as experts in accounting and auditing to
the extent covered by consents filed with the Commission.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTIONS.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offering of the Securities, are as follows:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission...... $442,500
Printing and Engraving Expenses............................. 125,000
Legal Fees and Expenses (other than Blue Sky)............... 100,000
Accounting Fees and Expenses................................ 75,000
Blue Sky Fees and Expenses (including fees of counsel)...... 20,000
Trustee's and registrar's fees and expenses................. 5,000
Miscellaneous............................................... 10,000
--------
TOTAL............................................. $777,500
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
AIMCO
AIMCO's Charter limits the liability of AIMCO's directors and officers to
AIMCO and its stockholders to the fullest extent permitted from time to time by
Maryland law. Maryland law presently permits the liability of directors and
officers to a corporation or its stockholders for money damages to be limited,
except (i) to the extent that it is proved that the director or officer actually
received an improper benefit or profit in money, property or services for the
amount of the benefit or profit in money, property or services actually
received, or (ii) if a judgment or other final adjudication is entered in a
proceeding based on a finding that the director's or officer's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. This provision
does not limit the ability of AIMCO or its stockholders to obtain other relief,
such as an injunction or rescission.
AIMCO's Charter and Bylaws require AIMCO to indemnify its directors and
officers and permits AIMCO to indemnify certain other parties to the fullest
extent permitted from time to time by Maryland law. The MGCL permits a
corporation to indemnify its directors, officers and certain other parties
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that (i) the act or omission of the indemnified party
was material to the matter giving rise to the proceeding and (x) was committed
in bad faith or (y) was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit in money,
property or services or (iii) in the case of any criminal proceeding, the
indemnified party had reasonable cause to believe that the act or omission was
unlawful. Indemnification may be made against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by the director or officer
in connection with the proceeding; provided, however, that if the proceeding is
one by or in the right of the corporation, indemnification may not be made with
respect to any proceeding in which the director or officer has been adjudged to
be liable to the corporation. In addition, a director or officer may not be
indemnified with respect to any proceeding charging improper personal benefit to
the director or officer in which the director or officer was adjudged to be
liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction, or upon a plea of nolo contendere
or its equivalent, or an entry of any order of probation prior to judgment,
creates a rebuttable presumption that the director or officer did not meet the
requisite standard of conduct required for indemnification to be permitted. It
is the position of the Commission that indemnification of directors and officers
for liabilities arising under the Securities Act is against public policy and is
unenforceable pursuant to Section 14 of the Securities Act.
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AIMCO has entered into agreements with certain of its officers, pursuant to
which AIMCO has agreed to indemnify such officers to the fullest extent
permitted by applicable law.
THE AIMCO OPERATING PARTNERSHIP
The AIMCO Operating Partnership Agreement requires the AIMCO Operating
Partnership to indemnify the directors and officers of the General Partner (each
an "Indemnitee") to the fullest extent authorized by applicable law against any
and all losses, claims, damages, liabilities, joint or several, expenses
(including, without limitation, attorney's fees and other 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 AIMCO
Operating Partnership. Such indemnification continues after the Indemnitee
ceases to be a director or officer. The right to indemnification includes the
right to be paid by the AIMCO Operating Partnership the expenses incurred in
defending any proceeding in advance of its final disposition upon the delivery
of an undertaking by or on behalf of the Indemnitee to repay all amounts
advanced if a final judicial decision is rendered that such Indemnitee did not
meet the standard of conduct permitting indemnification under the AIMCO
Operating Partnership Agreement or applicable law.
The AIMCO Operating Partnership maintains insurance, at its expense, to
protect against any liability or loss, regardless of whether any director or
officer is entitled to indemnification under the AIMCO Operating Partnership
Agreement or applicable law.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement for Debt Securities of
Apartment Investment and Management Company.
*1.2 Form of Underwriting Agreement for Preferred Stock of
Apartment Investment and Management Company.
*1.3 Form of Underwriting Agreement for Class A Common Stock of
Apartment Investment and Management Company.
*1.4 Form of Underwriting Agreement for Warrants to purchase
Securities of Apartment Investment and Management Company.
*1.5 Form of Underwriting Agreement for Debt Securities of AIMCO
Properties, L.P.
***4.1 Form of Senior Debt Securities Indenture for Apartment
Investment and Management Company (including form of Note).
***4.2 Form of Senior Subordinated Debt Securities Indenture for
Apartment Investment and Management Company (including form
of Note).
***4.3 Form of Subordinated Debt Securities Indenture for Apartment
Investment and Management Company (including form of Note).
4.4 Form of Senior Debt Securities Indenture for AIMCO
Properties, L.P. (including form of Note)
4.5 Form of Senior Subordinated Debt Securities Indenture for
AIMCO Properties, L.P. (including form of Note)
4.6 Form of Subordinated Debt Securities Indenture for AIMCO
Properties, L.P. (including form of Note)
***4.7 Form of Warrant Agreement (including form of Warrant
Certificate) for Apartment Investment and Management
Company.
*4.8 Form of Preferred Stock Certificate for Apartment Investment
and Management Company.
**4.9 Specimen certificate for Class A Common Stock of Apartment
Investment and Management Company.
</TABLE>
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<PAGE> 53
<TABLE>
<C> <S>
5.1 Opinion of Piper & Marbury L.L.P. regarding the validity of
the securities of Apartment Investment and Management
Company offered hereby.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding the validity of the securities of AIMCO
Properties, L.P. offered hereby.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding tax matters.
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to combined fixed charges
and preferred stock dividends.
23.1 Consent of Ernst & Young LLP Dallas, Texas, dated November
20, 1998.
23.2 Consent of Ernst & Young LLP Chicago, Illinois, dated
November 20, 1998.
23.3 Consent of Ernst & Young LLP Greenville, South Carolina,
dated November 20, 1998.
23.4 Consent of Beers & Cutler PLLC, dated November 20, 1998.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in opinions filed as Exhibit 5.2 and Exhibit 8.1).
23.6 Consent of Piper & Marbury L.L.P. (included in opinion filed
as Exhibit 5.1).
***24.1 Power of Attorney for Apartment Investment and Management
Company.
***24.2 Power of Attorney for AIMCO Properties, L.P.
25.1 Statement of Eligibility and Qualification of Trustee under
the Senior Debt Securities Indenture for Apartment
Investment and Management Company.
25.2 Statement of Eligibility and Qualification of Trustee under
the Senior Subordinated Debt Securities Indenture for
Apartment Investment and Management Company.
25.3 Statement of Eligibility and Qualification of Trustee under
the Subordinated Debt Securities Indenture for Apartment
Investment and Management Company.
25.4 Statement of Eligibility and Qualification of Trustee under
the Senior Debt Securities Indenture for AIMCO Properties,
L.P.
25.5 Statement of Eligibility and Qualification of Trustee under
the Senior Subordinated Debt Securities Indenture for AIMCO
Properties, L.P.
25.6 Statement of Eligibility and Qualification of Trustee under
the Subordinated Debt Securities Indenture for AIMCO
Properties, L.P.
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference prior to the offering
of Securities.
** Incorporated by reference from AIMCO's Registration Statement on Form 8-A
filed on July 19, 1994.
*** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate
II-3
<PAGE> 54
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by either registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' annual reports pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrants of expenses incurred
or paid by a director, officer or controlling person of the registrants in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Securities Act.
II-4
<PAGE> 55
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Apartment
Investment and Management Company certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Amendment No. 2 to the Registration Statement on Form S-3 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Denver, State of Colorado, on the 25th day of November, 1998.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ TERRY CONSIDINE
----------------------------------
Terry Considine
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ TERRY CONSIDINE Chairman and Chief Executive November 25, 1998
- ----------------------------------------------------- Officer
Terry Considine
* Vice Chairman and President November 25, 1998
- -----------------------------------------------------
Peter K. Kompaniez
* Senior Vice President and Chief November 25, 1998
- ----------------------------------------------------- Financial Officer
Troy D. Butts
* Director November 25, 1998
- -----------------------------------------------------
Richard S. Ellwood
* Director November 25, 1998
- -----------------------------------------------------
J. Landis Martin
* Director November 25, 1998
- -----------------------------------------------------
Thomas L. Rhodes
* Director November 25, 1998
- -----------------------------------------------------
John D. Smith
</TABLE>
*By: /s/ TERRY CONSIDINE
-------------------------------
Terry Considine
Attorney-in-Fact
II-5
<PAGE> 56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AIMCO
Properties, L.P. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on this Form S-3 and has duly caused
this Amendment No. 2 to the Registration Statement on Form S-3 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Denver,
State of Colorado, on the 25th day of November, 1998.
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, INC.
its General Partner
By: /s/ TERRY CONSIDINE
----------------------------------
Terry Considine,
Chairman and Chief Executive
Officer
of the General Partner
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ TERRY CONSIDINE Chairman and Chief Executive November 25, 1998
- ----------------------------------------------------- Officer of the General
Terry Considine Partner
* Vice Chairman and President November 25, 1998
- ----------------------------------------------------- of the General Partner
Peter K. Kompaniez
* Senior Vice President and November 25, 1998
- ----------------------------------------------------- Chief Financial Officer of
Troy D. Butts the General Partner
</TABLE>
*By: /s/ TERRY CONSIDINE
-------------------------------
Terry Considine
Attorney-in-Fact
II-6
<PAGE> 57
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*1.1 Form of Underwriting Agreement for Debt Securities of
Apartment Investment and Management Company.
*1.2 Form of Underwriting Agreement for Preferred Stock of
Apartment Investment and Management Company.
*1.3 Form of Underwriting Agreement for Class A Common Stock of
Apartment Investment and Management Company.
*1.4 Form of Underwriting Agreement for Warrants to purchase
Securities of Apartment Investment and Management Company.
*1.5 Form of Underwriting Agreement for Debt Securities of AIMCO
Properties, L.P.
***4.1 Form of Senior Debt Securities Indenture for Apartment
Investment and Management Company (including form of Note).
***4.2 Form of Senior Subordinated Debt Securities Indenture for
Apartment Investment and Management Company (including form
of Note).
***4.3 Form of Subordinated Debt Securities Indenture for Apartment
Investment and Management Company (including form of Note).
4.4 Form of Senior Debt Securities Indenture for AIMCO
Properties, L.P. (including form of Note)
4.5 Form of Senior Subordinated Debt Securities Indenture for
AIMCO Properties, L.P. (including form of Note)
4.6 Form of Subordinated Debt Securities Indenture for AIMCO
Properties, L.P. (including form of Note)
***4.7 Form of Warrant Agreement (including form of Warrant
Certificate) for Apartment Investment and Management
Company.
*4.8 Form of Preferred Stock Certificate for Apartment Investment
and Management Company.
**4.9 Specimen certificate for Class A Common Stock of Apartment
Investment and Management Company.
5.1 Opinion of Piper & Marbury L.L.P. regarding the validity of
the securities of Apartment Investment and Management
Company offered hereby.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding the validity of the securities of AIMCO
Properties, L.P. offered hereby.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding tax matters.
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to combined fixed charges
and preferred stock dividends.
23.1 Consent of Ernst & Young LLP Dallas, Texas, dated November
20, 1998.
23.2 Consent of Ernst & Young LLP Chicago, Illinois, dated
November 20, 1998.
23.3 Consent of Ernst & Young LLP Greenville, South Carolina,
dated November 20, 1998.
23.4 Consent of Beers & Cutler PLLC, dated November 20, 1998.
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in opinions filed as Exhibit 5.2 and Exhibit 8.1).
</TABLE>
<PAGE> 58
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
23.6 Consent of Piper & Marbury L.L.P. (included in opinion filed
as Exhibit 5.1).
***24.1 Power of Attorney for Apartment Investment and Management
Company.
***24.2 Power of Attorney for AIMCO Properties, L.P.
25.1 Statement of Eligibility and Qualification of Trustee under
the Senior Debt Securities Indenture for Apartment
Investment and Management Company.
25.2 Statement of Eligibility and Qualification of Trustee under
the Senior Subordinated Debt Securities Indenture for
Apartment Investment and Management Company.
25.3 Statement of Eligibility and Qualification of Trustee under
the Subordinated Debt Securities Indenture for Apartment
Investment and Management Company.
25.4 Statement of Eligibility and Qualification of Trustee under
the Senior Debt Securities Indenture for AIMCO Properties,
L.P.
25.5 Statement of Eligibility and Qualification of Trustee under
the Senior Subordinated Debt Securities Indenture for AIMCO
Properties, L.P.
25.6 Statement of Eligibility and Qualification of Trustee under
the Subordinated Debt Securities Indenture for AIMCO
Properties, L.P.
</TABLE>
- ---------------
* To be filed by amendment or incorporated by reference prior to the offering
of Securities.
** Incorporated by reference from AIMCO's Registration Statement on Form 8-A
filed on July 19, 1994.
*** Previously filed.
<PAGE> 1
EXHIBIT 4.4
================================================================================
AIMCO PROPERTIES, L.P.,
AS ISSUER
AND
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
AS GUARANTOR, IF APPLICABLE
SENIOR DEBT SECURITIES
----------------------
INDENTURE
Dated as of __________
----------------------
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE(1)
- --------------------------------------------------------------------------
TIA INDENTURE
SECTION SECTION
- ------- ---------
<S> <C> <C>
310 (a)(1).........................................................7.10
(a)(2).........................................................N.A.
(a)(3).........................................................N.A.
(a)(4).........................................................N.A.
(a)(5).........................................................7.10
(b)............................................................7.10
(b)(1).........................................................7.10
(c)............................................................N.A.
311 (a)............................................................7.11
(b)............................................................7.11
(c)............................................................N.A.
312 (a)............................................................N.A.
(b)............................................................13.3
(c)............................................................13.3
313 (a).............................................................7.6
(b).............................................................7.6
(c).............................................................7.6
(d)............................................................N.A.
314 (a).............................................................4.2
(b)............................................................N.A.
(c)(1).........................................................N.A.
(c)(2).........................................................N.A.
(c)(3).........................................................N.A.
(d)............................................................N.A.
(e)............................................................N.A.
(f)............................................................N.A.
315 (a)............................................................N.A.
(b).............................................................7.5
(c)............................................................N.A.
(d)............................................................N.A.
(e)............................................................N.A.
316 (a)(1)(A)......................................................N.A.
(a)(1)(B)......................................................N.A.
(a)(2).........................................................N.A.
(b)............................................................N.A.
(c)............................................................N.A.
- --------
</TABLE>
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
- i -
<PAGE> 3
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
- ------- ---------
<S> <C> <C>
317 (a)(1).........................................................N.A.
(a)(2).........................................................N.A.
(b)............................................................N.A.
318 (a)............................................................N.A.
</TABLE>
- ii -
<PAGE> 4
TABLE OF CONTENTS(2)
<TABLE>
<S> <C>
RECITALS OF THE COMPANY ......................................................1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE ...................................1
SECTION 1.1 Definitions ...............................................1
SECTION 1.2 Other Definitions .........................................6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act .........6
SECTION 1.4 Rules of Construction .....................................7
ARTICLE II
THE SECURITIES ...............................................................7
SECTION 2.1 Forms Generally ...........................................7
SECTION 2.2 Securities in Global Form .................................7
SECTION 2.3 Title, Terms and Denominations ............................8
SECTION 2.4 Execution, Authentication, Delivery and Dating ...........11
SECTION 2.5 Registrar and Paying Agent ...............................14
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust .......15
SECTION 2.7 Securityholder Lists .....................................15
SECTION 2.8 Transfer and Exchange ....................................15
SECTION 2.9 Replacement Securities ...................................18
SECTION 2.10 Outstanding Securities; Determinations of Holders'
Action ...................................................19
SECTION 2.11 Temporary Securities .....................................20
SECTION 2.12 Cancellation .............................................21
SECTION 2.13 Payment of Interest; Interest Rights Preserved ...........21
SECTION 2.14 Persons Deemed Owners ....................................22
SECTION 2.15 Computation of Interest ..................................23
ARTICLE III
REDEMPTION ..................................................................23
</TABLE>
- --------
(2) Note: This Table of Contents shall not, for any reasons, be deemed to be
part of the Indenture.
- iii -
<PAGE> 5
<TABLE>
<S> <C>
SECTION 3.1 Right to Redeem; Notices to Trustee .......................23
SECTION 3.2 Selection of Securities to be Redeemed ....................23
SECTION 3.3 Notice of Redemption ......................................24
SECTION 3.4 Effect of Notice of Redemption ............................24
SECTION 3.5 Deposit of Redemption Price ...............................25
SECTION 3.6 Securities Redeemed in Part ...............................25
ARTICLE IV
COVENANTS ...................................................................25
SECTION 4.1 Payment of Securities .....................................25
SECTION 4.2 SEC Reports ...............................................26
SECTION 4.3 Compliance Certificate ....................................26
SECTION 4.4 Further Instruments and Acts ..............................26
SECTION 4.5 Maintenance of Office or Agency ...........................26
ARTICLE V
SUCCESSOR CORPORATION .......................................................27
SECTION 5.1 When Company May Merge or Transfer Assets .................27
ARTICLE VI
DEFAULTS AND REMEDIES .......................................................28
SECTION 6.1 Events of Default .........................................28
SECTION 6.2 Acceleration ..............................................29
SECTION 6.3 Other Remedies ............................................30
SECTION 6.4 Waiver of Past Defaults ...................................30
SECTION 6.5 Control by Majority .......................................31
SECTION 6.6 Limitation on Suits .......................................31
SECTION 6.7 Rights of Holders to Receive Payment ......................31
SECTION 6.8 Collection Suit by Trustee ................................32
SECTION 6.9 Trustee May File Proofs of Claim ..........................32
SECTION 6.10 Priorities ...............................................32
SECTION 6.11 Undertaking for Costs ....................................33
SECTION 6.12 Waiver of Stay, Extension or Usury Laws ..................33
</TABLE>
- iv -
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE VII
TRUSTEE .....................................................................34
SECTION 7.1 Duties of Trustee .........................................34
SECTION 7.2 Rights of Trustee .........................................35
SECTION 7.3 Individual Rights of Trustee, etc .........................35
SECTION 7.4 Trustee's Disclaimer ......................................35
SECTION 7.5 Notice of Defaults ........................................35
SECTION 7.6 Reports by Trustee to Holders .............................36
SECTION 7.7 Compensation and Indemnity ................................36
SECTION 7.8 Replacement of Trustee ....................................37
SECTION 7.9 Successor Trustee by Merger ...............................39
SECTION 7.10 Eligibility; Disqualification .............................39
SECTION 7.11 Preferential Collection of Claims Against Company .........39
ARTICLE VIII
SATISFACTION AND DISCHARGE .................................................39
SECTION 8.1 Discharge of Liability on Securities ......................39
SECTION 8.2 Repayment to the Company ..................................40
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance ........40
SECTION 8.4 Defeasance and Discharge ..................................40
SECTION 8.5 Covenant Defeasance .......................................41
SECTION 8.6 Condition to Defeasance or Covenant Defeasance ............41
ARTICLE IX
SUPPLEMENTAL INDENTURES ....................................................41
SECTION 9.1 Supplemental Indentures without Consent of Holders ........41
SECTION 9.2 Supplemental Indentures with Consent of Holders ...........42
SECTION 9.3 Compliance with Trust Indenture Act .......................44
SECTION 9.4 Revocation and Effect of Consents, Waivers and
Actions ...................................................44
SECTION 9.5 Notation on or Exchange of Securities .....................44
SECTION 9.6 Trustee to Sign Supplemental Indentures ...................44
SECTION 9.7 Effect of Supplemental Indentures .........................45
</TABLE>
- v -
<PAGE> 7
<TABLE>
<S> <C>
ARTICLE X
SINKING FUNDS ..............................................................45
SECTION 10.1 Applicability of Article .................................45
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities ....45
SECTION 10.3 Redemption of Securities for Sinking Fund ................46
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES ...........................................46
SECTION 11.1 Purposes for which Meetings may be Called ................46
SECTION 11.2 Call, Notice and Place of Meetings .......................46
SECTION 11.3 Persons Entitled to Vote at Meetings .....................47
SECTION 11.4 Quorum; Action ...........................................47
SECTION 11.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings ..................................48
SECTION 11.6 Counting Votes and Recording Action of Meetings ..........48
SECTION 11.7 Actions of Holders Generally .............................49
ARTICLE XII
GUARANTEES .................................................................50
SECTION 12.1 Guarantees ...............................................50
ARTICLE XIII
MISCELLANEOUS ..............................................................52
SECTION 13.1 Trust Indenture Act Controls .............................52
SECTION 13.2 Notices ..................................................52
SECTION 13.3 Communication by Holders with Other Holders ..............53
SECTION 13.4 Certificate and Opinion as to Conditions Precedent .......53
SECTION 13.6 Separability Clause ......................................54
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar .............54
SECTION 13.8 Legal Holidays ...........................................54
SECTION 13.9 Governing Law ............................................55
SECTION 13.10 No Recourse Against Others ..............................55
SECTION 13.11 Successors ..............................................55
SECTION 13.12 Effect of Headings and Table of Contents ................55
SECTION 13.13 Benefits of Indenture ...................................55
SECTION 13.14 Multiple Originals ......................................55
</TABLE>
- vi -
<PAGE> 8
INDENTURE, dated as of ____________, by and among AIMCO Properties, L.P., a
Delaware limited partnership (the "Company"), Apartment Investment and
Management Company, a Maryland corporation (the "Guarantor"), and United States
Trust Company of New York, a New York corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
For value received, the execution and delivery by the Guarantor of this
Indenture to provide for the issuance of the Guarantee provided for herein (if
made applicable in accordance with Section 2.3) has been duly authorized. All
things necessary to make this Indenture a valid agreement of the Guarantor, in
accordance with its terms, have been done.
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
ratable benefit of the Holders of the Securities or each series thereof as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"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 or cause the direction of 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.
"Board of Directors" means either the board of directors of the General
Partner of the Company or any committee of such board authorized with respect to
any matter to exercise the powers of the Board of Directors of the General
Partner of the Company.
<PAGE> 9
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the General Partner of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"cash" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"Company" means the party named as the "Company" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by the Chairman of the Board, any Vice
Chairman, the President or any Vice President of its General Partner, and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
its General Partner, and delivered to the Trustee or, with respect to Sections
2.4, 2.8, 2.11 and 7.2, any other employee of its General Partner named in an
Officers' Certificate delivered to the Trustee.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such successor.
"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 6.2.
- 2 -
<PAGE> 10
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"General Partner" means the general partner of AIMCO Properties, L.P.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article XII.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 14(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively, a written
request or order signed in the name of the Guarantor by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"Holder" or "Securityholder," when used with respect to any Security, means
a person in whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the Principal of such Security or an installment of Principal or, in the case of
a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to
- 3 -
<PAGE> 11
Section 6.2, becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the General Partner of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President or any
Vice President of its General Partner, and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of its General Partner, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, its
General Partner, the Trustee, or the Guarantor, as the case may be.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 4.5, the
Principal of and any interest on the Securities of that series are payable as
specified as contemplated by Section 2.3(a).
"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 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
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<PAGE> 12
"Principal" or "Principal Amount" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "redemption price," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securityholder" or "Holder," when used with respect to any Security, means
a person in whose name a Security is registered on the Registrar's books.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
2.13.
"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 as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest thereon is due
and payable.
"Subsidiary" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries of such person or
(iii) one or more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"Trust Officer" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
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"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"United States" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
SECTION 1.2 Other Definitions.
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Date" 2.11
"Guaranteed Securities" 2.3
"Legal Holiday" 13.8
"Notice of Default" 6.1
"Outstanding" 2.10
"Paying Agent" 2.5
"Registrar" 2.5
</TABLE>
SECTION 1.3 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
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All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 2.8 Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the
United States as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be in
substantially such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities as evidenced by their
execution of the Securities. The Officers' Certificate so establishing the form
of Security of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.4 for the authentication
and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such Securities may be listed, all as determined by the
Officers executing such Securities as evidenced by their execution of such
Securities.
SECTION 2.2 Securities in Global Form. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then,
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<PAGE> 15
notwithstanding clause (10) of Section 2.3(a) and the provisions of Section
2.3(b), 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 from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount of 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 2.4 or Section 2.11. Subject to the provisions
of Section 2.4 and, if applicable, Section 2.11, the Trustee shall deliver and
redeliver any Security in 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 2.4 or 2.11 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 13.4 or 13.5 and need not be accompanied by an Opinion
of Counsel.
The provisions of the last sentence of Section 2.4 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 13.4 or 13.5 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 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
SECTION 2.3 Title, Terms and Denominations.
(a) The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
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<PAGE> 16
(2) any limit upon the aggregate Principal Amount of the Securities of
the series which 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 Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for
any Securities which, pursuant to Section 2.4, are deemed never to have
been authenticated and delivered hereunder);
(3) whether any Securities of the series may be represented initially
by a Security in temporary or permanent global form and, if so, the initial
Depositary with respect to any such temporary or permanent global Security,
and if other than as provided in Section 2.8 or Section 2.11, as
applicable, whether and the circumstances under which beneficial owners of
interests in any such temporary or permanent global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination;
(4) the person to whom any interest on any 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, and the extent to which, or
the manner in which (including any certification requirement and other
terms and conditions under which), any interest payable on a temporary or
permanent global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
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<PAGE> 17
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, and any provisions for the remarketing of such Securities;
(10) the denominations in which any Securities of the series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(12) if other than as defined in Section 1.1, the meaning of "Business
Day" when used with respect to any Securities of the series;
(13) the terms and conditions, if any, upon which the Securities of
the series may or must be converted into securities of the Company or
exchanged for securities of the Company;
(14) any terms applicable to Original Issue Discount (as that term is
defined in the Internal Revenue Code of 1986 and the Regulations
thereunder), if any, including the rate or rates at which such Original
Issue Discount, if any, shall accrue;
(15) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions;
(16) if the Guarantor has guaranteed the obligations of the Company
with respect to the Securities of the series (any such guaranteed
securities being "Guaranteed Securities"); and
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<PAGE> 18
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series shall be substantially identical except as
to denomination and the rate or rates of interest, if any, and Stated Maturity,
the date from which interest, if any, shall accrue and except as may otherwise
be provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any 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 for issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the General Partner of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series. With respect to
Securities of a series subject to a Periodic Offering, such Board Resolution or
Officers' Certificate may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by the Chairman of the Board, any
Vice Chairman, the President or any Vice President of its General Partner, or
the Treasurer or any Assistant Treasurer of its General Partner, under its
corporate seal reproduced thereon attested by the Secretary or any Assistant
Secretary of its General Partner. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the General Partner of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to
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<PAGE> 19
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if
any, and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been established
in or pursuant to one or more Officers' Certificates as permitted by Sections
2.1 and 2.3(a), in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form and terms of such Securities have been duly authorized by
the Company and established in conformity with the provisions of this Indenture;
and
(b) that such Securities when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section
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<PAGE> 20
2.3(a), as the case may be) will have been, duly authorized by the Company
and established in conformity with the provisions of this Indenture; and
(y) that such Securities when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance with
this Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 2.3(a) at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security 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. The Trustee's certificate of authentication shall be in substantially
the following form:
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<PAGE> 21
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
United States Trust Company of New York, as
Trustee
By:
----------------------------------------
Authorized Signatory
Notwithstanding the foregoing, if any Security shall have been duly
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 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 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 2.5 Registrar and Paying Agent. The Company or the Guarantor (if
the Securities are Guaranteed Securities) shall maintain, with respect to each
series of Securities, an office or agency where such Securities may be presented
for registration of transfer or for exchange ("Registrar") and, in the Borough
of Manhattan, The City of New York, an office or agency where such Securities
may be presented for purchase or payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company or the Guarantor, as the case may be, may have one or more co-registrars
and one or more additional paying agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of any such agent. If the Company or the Guarantor (if the
Securities are Guaranteed Securities) fails to maintain a Registrar or Paying
Agent for a particular series of Securities, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.7.
The Company or the Guarantor, as the case may be, or any Subsidiary or an
Affiliate of either of them may act as Paying Agent, Registrar or co-registrar.
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<PAGE> 22
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust. Except as
otherwise provided herein, prior to or on each due date of payments in respect
of any series of Securities, the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall deposit with the Paying Agent with respect to such
Securities a sum of money sufficient to make such payments when so becoming due.
The Company or the Guarantor, as the case may be, shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the making of payments in respect of the Securities of such
series and shall notify the Trustee of any default by the Company or the
Guarantor, as the case may be, in making any such payment. At any time during
the continuance of any such default, a Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money so held in trust
with respect to such Securities. If the Company or the Guarantor, as the case
may be, or a Subsidiary or an Affiliate of either of them acts as Paying Agent
for a series of Securities, it shall segregate the money held by it as Paying
Agent with respect to such Securities and hold it as a separate trust fund. The
Company or the Guarantor, as the case may be, at any time may require a Paying
Agent for a series of Securities to pay all money held by it with respect to
such Securities to the Trustee and to account for any money disbursed by it.
Upon doing so, such Paying Agent shall have no further liability for the money.
SECTION 2.7 Securityholder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of each series of Securities. If the Trustee is
not the Registrar for any series of Securities, the Company or the Guarantor (if
the Securities are Guaranteed Securities) shall cause to be furnished to the
Trustee at least semiannually on June 1 and December 1 a listing of Holders of
such series of Securities dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a list
in such form and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders of such series of Securities.
SECTION 2.8 Transfer and Exchange. Upon surrender for registration of
transfer of any Security at the office or agency of the Company or the Guarantor
(if the Securities are Guaranteed Securities) designated pursuant to Section 4.5
for such purpose, the Company and the Guarantor, as the case may be, shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company and the Guarantor, as the case may be, shall not charge a
service charge for any registration of transfer or exchange, but the Company and
the Guarantor, as the case may be, may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges that may be imposed in
connection with
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<PAGE> 23
the transfer or exchange of the Securities from the Securityholder requesting
such transfer or exchange (other than any exchange of a temporary Security for a
definitive Security not involving any change in ownership or any exchange
pursuant to Section 2.11, 3.6, 9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series of any authorized denomination or
denominations, of a like aggregate Principal Amount and tenor, upon surrender of
the Securities to be exchanged at the office or agency of the Company or the
Guarantor (if the Securities are Guaranteed Securities) designated as such
pursuant to Section 4.5 for the purpose of exchanges of Securities of such
series. Whenever any Securities are so surrendered for exchange, the Company and
the Guarantor (if the Securities are Guaranteed Securities) shall execute, and
the Trustee or a duly appointed authenticating agent shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Securities of a series notifies the
Company or the Guarantor (if the Securities are Guaranteed Securities) that it
is unwilling or unable to continue as Depositary for the Securities of such
series, the Company or the Guarantor, as the case may be, shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company or the Guarantor, as the case may be, within 90 days after the Company
or the Guarantor, as the case may be, receives such notice, the Company or the
Guarantor, as the case may be, will execute, and the Trustee, upon receipt of a
Company Order or Guarantor Order, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate Principal Amount
equal to the Principal Amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more global Securities shall no longer be
represented by such global Security or Securities. In such event the Company or
the Guarantor, as the case may be, will execute, and the Trustee, upon receipt
of a Company Order or Guarantor Order, as the case may be, for the
authentication and delivery of definitive Securities of such series,
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<PAGE> 24
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to
exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall deliver to the Trustee definitive Securities in aggregate
Principal Amount equal to the Principal Amount of such permanent global
Security, executed by the Company or the Guarantor, as the case may be,. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Depositary with respect
thereto to the Trustee, as the Company's (or the Guarantor's, as the case may
be), 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 permanent 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
permanent global Security to be exchanged; provided, however, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date. If a 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 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.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee. Securities
issued in exchange for a Security in global form pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor (if
such Securities are Guaranteed Securities), 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 Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Guarantor or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Guarantor, as the case may be, and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before any selection of Securities of that series to be redeemed and ending
(except as otherwise provided in the first proviso in the eighth paragraph of
this Section 2.8) at the close of business on the day of the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 2.9 Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company, the Guarantor (if the Securities are Guaranteed Securities) or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company and the Guarantor (if the Securities are Guaranteed Securities) shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company or the Guarantor (if the
Securities are Guaranteed Securities) in its discretion may, instead of issuing
a new Security, pay such Security.
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Upon the issuance of any new Securities under this Section, the Company or
the Guarantor (if the Securities are Guaranteed Securities) 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 issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the Guarantor (if the
Securities are Guaranteed Securities), whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and any such new
Security shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of that issue 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.
SECTION 2.10 Outstanding Securities; Determinations of Holders' Action.
Securities of any series "Outstanding" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "Outstanding" because the Company or the
Guarantor (if the Securities are Guaranteed Securities) or an Affiliate thereof
holds the Security; provided, however, that in determining whether the Holders
of the requisite Principal Amount of Outstanding Securities have given or
concurred in any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or the Guarantor, as the case
may be, or any other obligor upon the Securities or any Affiliate of the Company
or the Guarantor, as the case may be, or such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected 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 the
Guarantor, as the case may be, or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor, as the case may be, or of such other
obligor. Subject to the foregoing, only Securities outstanding at the time of
such determination shall be considered in any such determination (including,
without limitation, determinations pursuant to Articles VI and IX). In addition,
in determining whether the Holders of the requisite Principal Amount of
Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, the Principal
Amount of a Discount
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Security that shall be deemed to be Outstanding shall be the amount of the
Principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
6.2.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Trustee (other than the Company or the Guarantor (if the Securities
are Guaranteed Securities)) holds, in accordance with this Indenture, on a
Redemption Date or on Stated Maturity, money sufficient to pay Securities
payable on that date, then on and after that date such Securities shall cease to
be outstanding and interest, if any, on such Securities shall cease to accrue;
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.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company or the Guarantor (if the Securities are
Guaranteed Securities) may execute, and upon Company Order or Guarantor Order,
as the case may be, 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, 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. Such temporary
Securities may be in global form.
If temporary Securities for some or all of the Securities of any series are
issued, the Company or the Guarantor (if the Securities are Guaranteed
Securities) will cause definitive Securities representing such Securities to be
prepared without unreasonable delay. After the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company or the Guarantor, as the case may be, designated
as such pursuant to Section 4.5 for the purpose of exchanges of Securities of
such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company or the Guarantor,
as the case may be, shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like Principal Amount of definitive Securities of the
same series and of like tenor of authorized denominations. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
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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 permanent Securities of the same series and of like tenor
authenticated and delivered hereunder.
SECTION 2.12 Cancellation. All Securities surrendered for payment,
redemption, 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 all Securities so delivered shall be
promptly cancelled by it. The Company or the Guarantor (if the Securities are
Guaranteed Securities) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor, as the case may be, may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company or the Guarantor, as the case may be, may not reissue, or issue new
Securities to replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted in the form of Securities for any particular series or as permitted by
this Indenture. All cancelled Securities held by the Trustee shall be destroyed
by the Trustee and evidence of their destruction delivered to the Company or the
Guarantor, as the case may be, unless the Company or the Guarantor, as the case
may be, directs by Company Order or Guarantor Order, as the case may be, that
the Trustee deliver cancelled Securities to the Company or the Guarantor, as
the case may be.
SECTION 2.13 Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Security which 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.
Any interest on any Security of any series which 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 Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor (if the
Securities are Guaranteed Securities), at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may elect to make payment of any Defaulted Interest to the
persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered
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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 or the Guarantor, as the case may be, shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company or the Guarantor, as the case may be, shall deposit with the
Trustee an amount of money 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 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 or the
Guarantor, as the case may be, of such Special Record Date and, in the
name and at the expense of the Company or the Guarantor, as the case may
be, 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 Securities at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the persons in whose names the Securities (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).
(2) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may make payment of any Defaulted Interest on the Securities 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 or the Guarantor, as the case may be, 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 2.8, 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 2.14 Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Guarantor (if the Securities are
Guaranteed Securities), the Trustee and any agent of the Company, the Guarantor
(if the Securities are Guaranteed Securities) or the Trustee may treat the
person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of Principal
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of and (except as otherwise specified as contemplated by Section 2.3(a) and
subject to Section 2.8 and Section 2.13) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Guarantor (if the Securities are Guaranteed Securities), the
Trustee nor any agent of the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee, any Paying Agent or the 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.
SECTION 2.15 Computation of Interest. Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on
any Securities which bear interest at a fixed rate shall be computed on the
basis of a 360-day year comprised of twelve 30-day months and (ii) interest on
any Securities which bear interest at a variable rate shall be computed on the
basis of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 Right to Redeem; Notices to Trustee. 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount and any other information necessary to identify the Securities of such
series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 Selection of Securities to be Redeemed. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of
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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 make the selection
not more than 60 days before the Redemption Date from Outstanding Securities of
such series not previously called for redemption. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
in writing of the Securities to be redeemed and, in the case of any portions of
Securities to be redeemed, the principal amount thereof to be redeemed.
SECTION 3.3 Notice of Redemption. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price;
and
(6) that the redemption is for a sinking fund, if such is the case.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
SECTION 3.4 Effect of Notice of Redemption. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the
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Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
2.3(a), installments of interest on 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 Sections 2.8 and 2.13.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 Deposit of Redemption Price. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company designated therefor pursuant to Section 4.5 (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, upon such surrender,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Security or Securities of the same series and of
like tenor, in an authorized denomination, as requested by such Holder, equal in
aggregate Principal Amount to, and in exchange for, the unredeemed portion of
the Principal of the Security surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities. The Company or the Guarantor (if the
Securities are Guaranteed Securities) shall promptly make all payments in
respect of each series of Securities on the dates and in the manner provided in
the Securities and, to the extent not otherwise so provided, pursuant to this
Indenture. An installment of Principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or a Paying Agent (other
than the Company or the Guarantor, as the case may be, or an Affiliate of the
Company or the Guarantor, as the case may be) holds on that date funds
designated for and sufficient to pay such installment. At the Company's or the
Guarantor's (if the Securities are Guaranteed Securities) option, payments of
Principal or interest may be made by check or by transfer to an account
maintained by the payee.
SECTION 4.2 SEC Reports. The Company or the Guarantor (if the Securities
are Guaranteed Securities) shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company or the Guarantor, as the
case may be, also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.3 Compliance Certificate. The Company and the Guarantor (if the
Securities are Guaranteed Securities) shall each deliver to the Trustee within
120 days after the end of each of their respective fiscal year (beginning with
the first fiscal year ending on or after the date hereof), an Officers'
Certificate and Guarantor's Officers' Certificate, as the case may be, stating
whether or not the signers know of any Default that occurred during such period.
If they do, such Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, shall describe the Default and its status.
SECTION 4.4 Further Instruments and Acts. Upon request of the Trustee, the
Company and the Guarantor (if the Securities are Guaranteed Securities) will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 4.5 Maintenance of Office or Agency. The Company or the Guarantor
(if the Securities are Guaranteed Securities) will maintain in the Borough of
Manhattan, the City of New York, an office or agency where Securities of that
series may be presented or surrendered for payment, where any Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange,
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purchase or redemption and where notices and demands to or upon the Company or
the Guarantor, as the case may be, in respect of the Securities of that series
and this Indenture may be served. The office of the Trustee in New York, New
York shall be such office or agency for all of the aforesaid purposes unless the
Company or the Guarantor, as the case may be, shall maintain some other office
or agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change in the location, of such other office or agency.
If at any time the Company or the Guarantor, as the case may be, shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, and the Company or the Guarantor, as the case may be,
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
may also 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 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the
case may be, 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.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge or Transfer Assets. The Company and the
Guarantor (if the Securities are Guaranteed Securities) shall not consolidate
with or merge with or into any other person or convey, transfer or lease its
properties and assets substantially as an entirety to any person, unless:
(a) either (1) the Company or the Guarantor, as the case may be, shall
be the continuing entity or (2) the person (if other than the Company or
the Guarantor, as the case may be) formed by such consolidation or into
which the Company or the Guarantor, as the case may be, is merged or the
person which acquires by conveyance, transfer or lease the properties and
assets of the Company or the Guarantor, as the case may be, substantially
as an entirety (i) shall be a corporation, partnership or trust organized
and validity existing under the laws of the United States or any state
thereof or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto,
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executed and delivered to the Trustee, in form satisfactory to the Trustee,
all of the obligations of the Company or the Guarantor, as the case may be,
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate or, if applicable, the Guarantor shall have delivered to the
Trustee a Guarantor's Officers' Certificate, and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and that
all conditions precedent herein relating to such transaction have been
satisfied.
The successor person formed by such consolidation or into which the Company
or the Guarantor, as the case may be, is merged or the successor person to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or the Guarantor, as
the case may be, under this Indenture, with the same effect as if such successor
had been named as the Company or the Guarantor, as the case may be, herein; and
thereafter, except in the case of a lease of its properties and assets
substantially as an entirety, the Company or the Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Indenture and
the Securities.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of securities, an "Event of
Default" occurs, with respect to each series of the Securities individually, if:
(1) the Company or the Guarantor (if the Securities are Guaranteed
Securities) defaults in (a) the payment of the principal of any Security of
such series at its Maturity or (b) the payment of any interest upon any
Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company or the Guarantor (if the Securities are Guaranteed
Securities) fails to comply with any of its agreements in the Securities or
this Indenture (other than those referred to in clause (1) above and other
than a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section
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specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of another series of Securities) and such
failure continues for 60 days after receipt by the Company or the
Guarantor, as the case may be, of a Notice of Default;
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Company
or the Guarantor, as the case may be, in an involuntary case or proceeding
under any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company or the Guarantor, as the case may be, bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or the Guarantor, as the case may be, under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or the Guarantor, as the case may be, or of any substantial
part of its property, or ordering the wind up or liquidation of its
affairs, and any such decree or order for relief shall continue to be in
effect, or any such other decree or order shall be unstayed and in effect,
for a period of 60 consecutive days;
(4) (a) the Company or the Guarantor (if the Securities are Guaranteed
Securities) commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt
or insolvent, (b) the Company or the Guarantor, as the case may be,
consents to the entry of a decree or order for relief in respect of the
Company or the Guarantor, as the case may be, in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, (c) the Company
or the Guarantor, as the case may be, files a petition or answer or consent
seeking reorganization or substantially comparable relief under any
applicable federal or state law, (d) the Company or the Guarantor, as the
case may be, (x) consents to the filing of such petition or the appointment
of, or taking possession by, a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or the Guarantor,
as the case may be, or of any substantial part of its property, (y) makes
an assignment for the benefit of creditors or (z) admits in writing its
inability to pay its debts generally as they become due or (e) the Company
or the Guarantor, as the case may be, takes any action in furtherance of
any such actions in this clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
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A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of such series notify the Company, the Guarantor, as the
case may be, and the Trustee, of the Default and the Company or the Guarantor,
as the case may be, does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.2 Acceleration. If an Event of Default with respect to Securities
of any series at the time Outstanding (other than an Event of Default specified
in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by notice to the
Company and the Guarantor (if the Securities are Guaranteed Securities), or the
Holders of at least 25% in aggregate Principal Amount of the Outstanding
Securities of that series by notice to the Company, the Guarantor, as the case
may be, and the Trustee, may declare the Principal Amount (or, if any of the
Securities of that series are Discount Securities, such portion of the Principal
Amount of such Securities as may be specified in the terms thereof) of all the
Securities of that series to be immediately due and payable. Upon such a
declaration, such Principal (or portion thereof) shall be due and payable
immediately. If an Event of Default specified in Section 6.1(3) or (4) occurs
and is continuing, the Principal (or portion thereof) of all the Securities of
that series shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholders. The
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series, by notice to the Trustee (and without notice to any
other Securityholder) may rescind an acceleration with respect to that series
and its consequences if the rescission would not conflict with any judgment or
decree and all existing Events of Default with respect to Securities of such
series have been cured or waived except nonpayment of the Principal (or portion
thereof) of Securities of such series that has become due solely as a result of
such acceleration and if all amounts due to the Trustee under Section 7.7 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3 Other Remedies. If an Event of Default with respect to a series
of Outstanding Securities occurs and is continuing, the Trustee may pursue any
available remedy to (a) collect the payment of the whole amount then due and
payable on such Securities for Principal and interest, with interest upon the
overdue Principal and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest from the date such
interest was due, at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including amounts due the Trustee under
Section 7.7 or (b) enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing
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upon an Event of Default shall not impair the right or remedy or constitute a
waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of
any other remedy. All available remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series, by notice to the
Trustee (and without notice to any other Securityholder), may on behalf of the
Holders of all the Securities of such series waive an existing Default with
respect to such series and its consequences except (1) an Event of Default
described in Section 6.1(1) with respect to such series or (2) a Default in
respect of a provision that under Section 9.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.5 Control by Majority. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits. A Holder of any Security of any series may
not pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
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A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right, which is absolute and unconditional, of
any Holder of any Security to receive payment of the Principal of and (subject
to Section 2.13) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) held by such Holder, on or after the respective due dates expressed in the
Securities or any Redemption Date, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected adversely without the consent of each such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default described in
Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or the Guarantor, as the case may be, for
the whole amount owing with respect to such series of Securities and the amounts
provided for in Section 7.7.
SECTION 6.9 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, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon the Securities or the property of the Company, the Guarantor,
as the case may be, or of such other obligor or their creditors, the Trustee
(irrespective of whether the Principal of the Securities 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 or the Guarantor,
as the case may be, for the payment of overdue Principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 7.7)
and of the Holders of Securities allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliver able on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making
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of such payments directly to the Holders of Securities, to pay the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7.
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
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities 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 in any such
proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following order and, in case of the
distribution of such money on account of Principal or interest, upon
presentation of the Securities, 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 Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid for the Principal and
interest on the Securities 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 amounts due and payable on such Securities for Principal and
interest, respectively; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs. 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, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10%
in aggregate Principal Amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security for the enforcement of the
payment of the Principal of or interest on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
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SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The Company and the
Guarantor (if the Securities are Guaranteed Securities), in each case, 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 stay or extension law or any usury or other 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 and the Guarantor, as the
case may be, (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.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and shall not be liable except
for the performance of such duties; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) 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 not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 Rights of Trustee. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
SECTION 7.3 Individual Rights of Trustee, etc. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates or with the Guarantor
(if the Securities are Guaranteed Securities) or its Affiliates, with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar or any other agent of the Company or the Guarantor, as the case may
be, may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
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SECTION 7.4 Trustee's Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities. The Trustee shall
not be account able for the Company's or the Guarantor's (if the Securities are
Guaranteed Securities) use of the proceeds from the Securities and shall not be
responsible for any statement in the registration statement for the Securities
under the Securities Act of 1933, as amended, or in the Indenture or the
Securities (other than its certificate of authentication) or for the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.5 Notice of Defaults. If a Default with respect to the Securities
of any series occurs and is continuing and if it is known to the Trustee, the
Trustee shall give to each Holder of Securities of such series notice of such
Default in the manner set forth in TIA Section 315(b) within 90 days after it
occurs. The Trustee shall have no duty to inquire as to the performance of the
Company's or the Guarantor's (if the Securities are Guaranteed Securities)
covenants in Article IV hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Section 4.1 or 6.1(l), or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company and the Guarantor (if the Securities are
Guaranteed Securities) agrees to notify the Trustee whenever the Securities of a
particular series become listed on any stock exchange and of any delisting
thereof.
SECTION 7.7 Compensation and Indemnity. The Company and the Guarantor (if
the Securities are Guaranteed Securities) each agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the 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, advances 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
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(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, 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.
To secure the Company's and the Guarantor's (if the Securities are
Guaranteed Securities) payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the Principal of or
interest, if any, on particular Securities.
The Company's and the Guarantor's (if the Securities are Guaranteed
Securities) payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee. The Trustee may resign by so notifying
the Company and the Guarantor (if the Securities are Guaranteed Securities);
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.8. The Holders
of a majority in aggregate Principal Amount of the Outstanding Securities of any
series at the time outstanding may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee and may appoint a
successor Trustee. The Company and the Guarantor (if the Securities are
Guaranteed Securities) shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Company or the Guarantor (if the Securities are Guaranteed Securities) shall
promptly appoint, by resolution of their respective boards of directors, as
applicable, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor
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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 series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company and
the Guarantor (if the Securities are Guaranteed Securities). Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
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 Guarantor
(if the Securities are Guaranteed Securities), 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 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 as 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, the Guarantor (if the Securities are Guaranteed Securities) 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, subject, nevertheless, to its
lien, if any, provided for in Section 7.7.
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If a successor Trustee with respect to the Securities of any series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of such series at the time outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of any series fails to comply
with Section 7.10, any Holder of a Security of such series may petition any
court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
SECTION 7.9 Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
SECTION 7.11 Preferential Collection of Claims Against Company. The Trustee
shall comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Discharge of Liability on Securities. Except as otherwise
provided as contemplated by Section 2.3(a), when (a) the Company or the
Guarantor (if the Securities are Guaranteed Securities) delivers to the Trustee
for cancellation all Outstanding Securities or all Outstanding Securities of
any series, as the case may be, theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
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in trust by the Company or the Guarantor, as the case may be, and thereafter
repaid to the Company or the Guarantor, as the case may be, or discharged from
such trust, as provided in Section 2.6), or (b) all Outstanding Securities or
all Outstanding Securities of any series have become due and payable and the
Company or the Guarantor, as the case may be, deposits with the Trustee cash
sufficient to pay at Stated Maturity the Principal Amount of all Principal of
and interest on such Outstanding Securities (other than Securities replaced
pursuant to Section 2.9), and if in either case the Company or the Guarantor, as
the case may be, pays all other sums payable hereunder by the Company or the
Guarantor, as the case may be, then this Indenture shall, subject to Section
7.7, cease to be of further effect as to such Outstanding Securities. The
Trustee shall join in the execution of a document prepared by the Company or the
Guarantor, as the case may be, acknowledging satisfaction and discharge of this
Indenture on demand of the Company or the Guarantor, as the case may be,
accompanied by an Officers' Certificate or Guarantor's Officers' Certificate,
respectively, and Opinion of Counsel and at the cost and expense of the Company
or the Guarantor, as the case may be.
SECTION 8.2 Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company or the Guarantor (if the Securities are Guaranteed
Securities) on Company Request or Guarantor Request, as the case may be, any
money held by them for the payment of any amount with respect to the Securities
that remains unclaimed for two years; provided, however, that the Trustee or
such Paying Agent, before being required to make any such return, may at the
expense and direction of the Company or the Guarantor, as the case may be, mail
to each Holder of such Securities 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 mailing, any unclaimed money then remaining will be returned to
the Company or the Guarantor, as the case may be. After return to the Company or
the Guarantor, as the case may be, Holders entitled to the money must look to
the Company or the Guarantor, as the case may be, for payment as general
creditors unless an applicable abandoned property law designates another
person.
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.4 Defeasance and Discharge. Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.4, the Company and the
Guarantor (if the Securities are Guaranteed Securities) each shall be deemed to
have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company and the
Guarantor, as the case may be, shall be deemed to have
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paid and discharged the entire indebtedness represented by the defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Sections 2.4, 2.5, 2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7,
7.8 and 8.2 of this Indenture and to have satisfied all its other obligations
under such series of Securities and this Indenture insofar as such series of
Securities are concerned (and the Trustee, at the expense of the Company and,
upon written request, shall execute proper instruments acknowledging the same).
Subject to compliance with this Article VIII, the Company may exercise its
option under this Section 8.4 notwithstanding the prior exercise of its option
under Section 8.5 with respect to a series of Securities.
SECTION 8.5 Covenant Defeasance. Upon the Company's exercise under Section
8.3 of the option applicable to this Section 8.5, the Company and the Guarantor,
as the case may be, shall be released from its obligations under Sections 4.2
and 4.3 and Article V and such other provisions as may be provided as
contemplated by Section 2.3(a) with respect to Securities of a particular series
and with respect to the Defeased Securities on and after the date the conditions
set forth below are satisfied (hereinafter "covenant defeasance"), and the
Defeased Securities 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 if any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and the Guarantor, as the case may be, 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 Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provisions herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1 but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
SECTION 8.6 Condition to Defeasance or Covenant Defeasance. It shall be a
condition to the application of either Section 8.4 or Section 8.5 to a series of
outstanding Securities that the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds to pay the Principal of and interest to Stated
Maturity (or redemption) on, the Securities of such series, or (ii) such amount
of direct obligations of, or obligations the principal of and interest on which
are fully guaranteed by, the government of the United States, and which are not
subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Securities of such series.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders. Without the
consent of any Holders of Securities, the Company, the Guarantor (if the
Securities are Guaranteed Securities) 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 corporation to the Company
or the Guarantor, as the case may be, and the assumption by any such
successor of the covenants of the Company or the Guarantor, as the case may
be, herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the Company
or the Guarantor, as the case may be, for the benefit of the Holders of all
of the Securities or any series thereof, or to surrender any right or power
herein conferred upon the Company or the Guarantor, as the case may be; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3(a), respectively; or
(4) 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, pursuant to the requirements
of Section 7.8; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(7) to secure the Securities; or
(8) to make any other change that does not adversely affect the rights
of any Securityholder.
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SECTION 9.2 Supplemental Indentures with Consent of Holders. With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee may amend this Indenture or the
Securities of any series or 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 the Securities of such
series under this Indenture; provided, however, that no such amendment or
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 any installment
of Principal of or interest on, any such Security, or reduce the Principal
Amount thereof or the rate of interest thereon or any premium payable upon
redemption thereof or reduce the amount of Principal of any such Discount
Security that would be due and payable upon a declaration of acceleration
of maturity thereof pursuant to Section 6.2, or change the Place of
Payment, or change the coin or currency in which any Principal of, or any
installment of interest on, any such Security 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, on or after the
Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such amendment or supplemental indenture, or the consent of whose Holders
is required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences with respect
to the Securities of such series provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions 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.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company and the Guarantor (if the Securities are Guaranteed
Securities) shall mail to each Holder of the particular Securities affected
thereby a notice briefly describing the amendment.
SECTION 9.3 Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 Revocation and Effect of Consents, Waivers and Actions. Until
an amendment or waiver with respect to a series of Securities becomes effective,
a consent to it or any other action by a Holder of a Security of that series
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver or
action is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Security or
portion of the Security if the Trustee receives the notice of revocation before
the Company or the Guarantor (if the Securities are Guaranteed Securities) or an
agent of the Company or the Guarantor, as the case may be, certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment or waiver with
respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 Notation on or Exchange of Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
with respect to such series 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 and the Guarantor
(if the Securities are Guaranteed Securities) shall so determine, new Securities
of such series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such
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supplemental indenture may be prepared and executed by the Company and the
Guarantor, as the case may be, and authenticated and delivered by the Trustee in
exchange for outstanding Securities of that series.
SECTION 9.6 Trustee to Sign Supplemental Indentures. The Trustee shall sign
any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 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 shall be bound thereby, except
to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
SECTION 10.1 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 2.3(a) 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 Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of the Securities of such
series.
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities. The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), and (2) may apply as a credit Securities of a series with the same
issue date, interest rate and Stated Maturity which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case, in satisfaction of all
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or any part of any mandatory sinking fund payment with respect to the Securities
of such series with the same issue date, interest rate and Stated Maturity;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 10.3 Redemption of Securities for Sinking Fund. Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 10.2 and will also deliver to the
Trustee any Securities to be so delivered. 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
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.4 and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 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 11.2 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 11.1, to be held at such time and at such place in the
Borough of Manhattan, the City of New York or, with the approval of the Company
or the Guarantor (if the Securities are Guaranteed Securities), at any other
place. 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 13.2, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
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(b) In case at any time the Company, the Guarantor (if the Securities are
Guaranteed Securities) 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 11.1, 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, the Guarantor (if the Securities are
Guaranteed Securities) 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 such other place as shall be
determined and approved by the Company or the Guarantor, as the case may be, for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 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, any representatives of the Company and its counsel, and any
representatives of the Guarantor (if the Securities are Guaranteed Securities)
and its counsel.
SECTION 11.4 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. In the absence of
a quorum within 30 minutes of 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 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 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 11.2(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 an 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 9.2, 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 9.2, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
Principal Amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in Principal Amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 11.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other 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
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7. 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 11.7 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, the Guarantor (if the Securities are Guaranteed Securities) or by
Holders of Securities as provided in Section 11.2 (b), in which case the
Company, the Guarantor (if the Securities are Guaranteed Securities) 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 vote with respect to 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.
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(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 11.2 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 11.6 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 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 facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 11.2
and, if applicable, Section 11.4. 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 the Guarantor (if the Securities are
Guaranteed Securities), 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 11.7 Actions of Holders Generally. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. 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 or the Guarantor (if the Securities
are Guaranteed Securities). 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 (subject to
Section 7.1) conclusive in favor of the Trustee and the Company and the
Guarantor (if the Securities are Guaranteed Securities), 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 11.6.
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(b) The fact and date of the execution by any person of any such instrument
or writing, or the authority of the persons executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Securities held by the
person, and the date of holding the same, shall be proved by the books of the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security in accordance with this Section 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 or the Company or the Guarantor (if the Securities are Guaranteed
Securities) in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) If the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other act in accordance with this Section,
the Company or the Guarantor, as the case may be, may, at its option, by or
pursuant to an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, delivered to the Trustee, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or such other act, but the Company or the
Guarantor, as the case may be, shall have no obligation to do so. 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 percentage of Outstanding Securities or Outstanding Securities of a
series, as the case may be, 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 or Outstanding Securities of the
series, as the case may be, shall be computed as of such record date; provided,
that no such authorization, agreement or consent by the Holders on the record
date shall be deemed effective unless such request, demand, authorization,
direction, notice, consent, waiver or other act shall become effective pursuant
to the provisions of clause (a) of this Section 11.7 not later than six months
after the record date.
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ARTICLE XII
GUARANTEES
SECTION 12.1 Guarantees.
The Guarantee set forth in this Article XII shall only be in effect with
respect to Securities of a series to the extent such Guarantee is made
applicable to such series in accordance with Section 2.3. The Guarantor hereby
unconditionally guarantees to each Holder of a Guaranteed Security authenticated
and delivered by the Trustee the due and punctual payment of the principal of,
any premium and interest on such Guaranteed Security and the due and punctual
payment of the sinking fund payments (if any) provided for pursuant to the terms
of such Guaranteed Security, when and as the same shall become due and payable,
whether at maturity, by acceleration, redemption, repayment or other wise, in
accordance with the terms of such Security and of this Indenture. In case of the
failure of the Company punctually to pay any such principal, premium, interest
or sinking fund payment, the Guarantor hereby agrees to cause any such payment
to be made punctually when and as the same shall become due and payable, whether
at maturity, upon acceleration, redemption, repayment or otherwise, and as if
such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Company or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium or interest on, and sinking
fund payment required with respect to, the Guaranteed Securities and the
complete performance of all other obligations contained in the Guaranteed
Securities.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time payment on any Guaranteed Security, in whole or in part,
is restricted or must otherwise be restored to the Company or the Guarantor upon
the bankruptcy, liquidation or reorganization of the Company or otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Company in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee; provided,
however, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of, any premium and interest on, and sinking fund payments required
with respect to, all Guaranteed Securities shall have been paid in full.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows:
if to the Company:
AIMCO Properties, L.P.
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attention: [ ]
if to the Guarantor:
Apartment Investment and Management Company
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attention: [ ]
if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
Attention: Corporate Trust Department
The Company, the Guarantor (if the Securities are Guaranteed Securities) or
the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
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<PAGE> 60
Any notice or communication given to a Holder of Securities shall be mailed
to such Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
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.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company or the Guarantor (if the Securities are Guaranteed
Securities) mails a notice or communication to the Holders of Securities of a
particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided herein.
SECTION 13.3 Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, the
Guarantor (if the Securities are Guaranteed Securities) and the Trustee, the
Registrar or the Paying Agent with respect to a particular series of Securities,
and anyone else, shall have the protection of TIA Section 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company or the Guarantor (if the Securities are
Guaranteed Securities) to the Trustee to take any action under this Indenture,
the Company or the Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
- 53 -
<PAGE> 61
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5 Statements Required in Certificate or Opinion. Each Officers'
Certificate, Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate,
Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Guarantor's Officers' Certificate (if the
Securities are Guaranteed Securities) or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 Separability Clause. In case any provision in this Indenture
or in the Securities 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 13.7 Rules by Trustee, Paying Agent and Registrar. With respect to
the Securities of a particular series, the Trustee with respect to such series
of Securities may make reasonable rules for action by or a meeting of Holders of
such series of Securities. With respect to the Securities of a particular
series, the Registrar and the Paying Agent with respect to such series of
Securities may make reasonable rules for their functions.
SECTION 13.8 Legal Holidays. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series
- 54 -
<PAGE> 62
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or Principal need not be made at such Place of
Payment, or such other action need not be taken, on such date, but the action
shall be taken on the next succeeding day that is not a Legal Holiday at such
Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity or such other date
and to the extent applicable no Original Issue Discount or interest, if any,
shall accrue for the intervening period.
SECTION 13.9 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall not have any liability for any obligations of the
Company or the Guarantor, as the case may be, under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder of such
Security shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 13.11 Successors. All agreements of the Company or the Guarantor
(if the Securities are Guaranteed Securities) in this Indenture and the
Securities shall bind its respective successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 13.12 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 13.13 Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
SECTION 13.14 Multiple Originals. The parties may sign any number of copies
of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
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<PAGE> 63
AIMCO PROPERTIES, L.P.
AIMCO-GP, INC.
its General Partner
By:
-------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, as Guarantor, if applicable
By:
-------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
- 56 -
<PAGE> 64
UNITED STATES TRUST COMPANY OF NEW
YORK,
as Trustee
By:
-------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
- 57 -
<PAGE> 1
EXHIBIT 4.5
===============================================================================
AIMCO PROPERTIES, L.P.,
AS ISSUER
AND
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
AS GUARANTOR, IF APPLICABLE
SENIOR SUBORDINATED DEBT SECURITIES
------------------------------------
INDENTURE
Dated as of
-----------------
------------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
===============================================================================
<PAGE> 2
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE (1)
- -----------------------------------------------------------------------------------------------------
TIA INDENTURE
SECTION SECTION
- ------- ---------
<S> <C> <C>
310 (a)(1).................................................................................7.10
(a)(2).................................................................................N.A.
(a)(3).................................................................................N.A.
(a)(4).................................................................................N.A.
(a)(5).................................................................................7.10
(b)....................................................................................7.10
(b)(1).................................................................................7.10
(c).....................................................................................N.A
311 (a)....................................................................................7.11
(b)....................................................................................7.11
(c)....................................................................................N.A.
312 (a)....................................................................................N.A.
(b)....................................................................................13.3
(c)....................................................................................13.3
313 (a).................................................................................... 7.6
(b).....................................................................................7.6
(c).....................................................................................7.6
(d)....................................................................................N.A.
314 (a).....................................................................................4.2
(b)....................................................................................N.A.
(c)(1).................................................................................N.A.
(c)(2).................................................................................N.A.
(c)(3).................................................................................N.A.
(d).................................................................................. N.A.
(e)................................................................................... N.A.
(f).................................................................................. N.A.
315 (a).................................................................................. N.A.
(b)................................................................................... 7.5
(c)....................................................................................N.A.
(d)....................................................................................N.A.
(e)....................................................................................N.A.
316 (a)(1)(A)..............................................................................N.A.
(a)(1)(B)..............................................................................N.A.
(a)(2).................................................................................N.A.
(b)....................................................................................N.A.
(c)....................................................................................N.A.
</TABLE>
- --------
(1) Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
- i -
<PAGE> 3
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
- ------- ---------
<S> <C> <C>
317 (a)(1).................................................................................N.A.
(a)(2).................................................................................N.A.
(b)....................................................................................N.A.
318 (a)....................................................................................N.A.
</TABLE>
- ii -
<PAGE> 4
TABLE OF CONTENTS(2)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
RECITALS OF THE COMPANY.............................................................................1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................................................1
SECTION 1.1 Definitions..........................................................1
SECTION 1.2 Other Definitions....................................................6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act....................6
SECTION 1.4 Rules of Construction................................................7
ARTICLE II
THE SECURITIES.............................................................................7
SECTION 2.1 Forms Generally......................................................7
SECTION 2.2 Securities in Global Form............................................8
SECTION 2.3 Title, Terms and Denominations.......................................8
SECTION 2.4 Execution, Authentication, Delivery and Dating......................11
SECTION 2.5 Registrar and Paying Agent..........................................14
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust..................15
SECTION 2.7 Securityholder Lists................................................15
SECTION 2.8 Transfer and Exchange...............................................15
SECTION 2.9 Replacement Securities..............................................18
SECTION 2.10 Outstanding Securities; Determinations of Holders'
Action........................................................19
SECTION 2.11 Temporary Securities...............................................20
SECTION 2.12 Cancellation.......................................................21
SECTION 2.13 Payment of Interest; Interest Rights Preserved.....................21
SECTION 2.14 Persons Deemed Owners..............................................22
SECTION 2.15 Computation of Interest............................................23
ARTICLE III
REDEMPTION................................................................................23
</TABLE>
- --------
(2) Note: This Table of Contents shall not, for any reasons, be deemed to be
part of the Indenture.
- iii -
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 3.1 Right to Redeem; Notices to Trustee.................................23
SECTION 3.2 Selection of Securities to be Redeemed..............................23
SECTION 3.3 Notice of Redemption................................................24
SECTION 3.4 Effect of Notice of Redemption......................................24
SECTION 3.5 Deposit of Redemption Price.........................................25
SECTION 3.6 Securities Redeemed in Part.........................................25
ARTICLE IV
COVENANTS.................................................................................26
SECTION 4.1 Payment of Securities...............................................26
SECTION 4.2 SEC Reports.........................................................26
SECTION 4.3 Compliance Certificate..............................................26
SECTION 4.4 Further Instruments and Acts........................................26
SECTION 4.5 Maintenance of Office or Agency.....................................26
SECTION 4.6 Limitations on the Incurrence of Certain Other Debt.................27
ARTICLE V
SUCCESSOR CORPORATION.....................................................................27
SECTION 5.1 When Company May Merge or Transfer Assets...........................27
ARTICLE VI
DEFAULTS AND REMEDIES.....................................................................29
SECTION 6.1 Events of Default...................................................29
SECTION 6.2 Acceleration........................................................30
SECTION 6.3 Other Remedies......................................................31
SECTION 6.4 Waiver of Past Defaults.............................................31
SECTION 6.5 Control by Majority.................................................31
SECTION 6.6 Limitation on Suits.................................................31
SECTION 6.7 Rights of Holders to Receive Payment................................32
SECTION 6.8 Collection Suit by Trustee..........................................32
SECTION 6.9 Trustee May File Proofs of Claim....................................32
SECTION 6.10 Priorities..........................................................33
SECTION 6.11 Undertaking for Costs...............................................34
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.............................34
</TABLE>
- iv -
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C> <C>
TRUSTEE............................................................................................34
SECTION 7.1 Duties of Trustee...................................................34
SECTION 7.2 Rights of Trustee...................................................35
SECTION 7.3 Individual Rights of Trustee, etc...................................36
SECTION 7.4 Trustee's Disclaimer................................................36
SECTION 7.5 Notice of Defaults..................................................36
SECTION 7.6 Reports by Trustee to Holders.......................................36
SECTION 7.7 Compensation and Indemnity..........................................37
SECTION 7.8 Replacement of Trustee..............................................37
SECTION 7.9 Successor Trustee by Merger.........................................39
SECTION 7.10 Eligibility; Disqualification.......................................39
SECTION 7.11 Preferential Collection of Claims Against Company .............. . .40
ARTICLE VIII
SATISFACTION AND DISCHARGE.........................................................................40
SECTION 8.1 Discharge of Liability on Securities................................40
SECTION 8.2 Repayment to the Company............................................40
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance..................41
SECTION 8.4 Defeasance and Discharge............................................41
SECTION 8.5 Covenant Defeasance.................................................41
SECTION 8.6 Condition to Defeasance or Covenant Defeasance......................42
ARTICLE IX
SUPPLEMENTAL INDENTURES............................................................................42
SECTION 9.1 Supplemental Indentures without Consent of Holders..................42
SECTION 9.2 Supplemental Indentures with Consent of Holders.....................43
SECTION 9.3 Compliance with Trust Indenture Act.................................44
SECTION 9.4 Revocation and Effect of Consents, Waivers and
Actions........................................................44
SECTION 9.5 Notation on or Exchange of Securities...............................45
SECTION 9.6 Trustee to Sign Supplemental Indentures.............................45
SECTION 9.7 Effect of Supplemental Indentures...................................45
</TABLE>
- v -
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE X
<S> <C> <C>
SINKING FUNDS......................................................................................46
SECTION 10.1 Applicability of Article...........................................46
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities..............46
SECTION 10.3 Redemption of Securities for Sinking Fund..........................46
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES...................................................................47
SECTION 11.1 Purposes for which Meetings may be Called..........................47
SECTION 11.2 Call, Notice and Place of Meetings.................................47
SECTION 11.3 Persons Entitled to Vote at Meetings...............................47
SECTION 11.4 Quorum; Action.....................................................48
SECTION 11.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings........................................48
SECTION 11.6 Counting Votes and Recording Action of Meetings....................49
SECTION 11.7 Actions of Holders Generally.......................................50
ARTICLE XII
SUBORDINATION......................................................................................51
SECTION 12.1 Securities Subordinate to Senior Indebtedness ....................51
SECTION 12.2 Payment Over of Proceeds upon Dissolution, Etc.....................52
SECTION 12.3 Acceleration of Securities.........................................54
SECTION 12.4 Default in Senior Indebtedness.....................................54
SECTION 12.5 Payment Permitted if No Default....................................55
SECTION 12.6 Subrogation Rights of Holders of Senior
Indebtedness..................................................56
SECTION 12.7 Provision Solely to Define Relative Rights.........................57
SECTION 12.8 Trustee to Effectuate Subordination................................57
SECTION 12.9 No Waiver of Subordination Provisions..............................57
SECTION 12.10 Notice to Trustee.................................................57
SECTION 12.11 Reliance on Judicial Order or Certificate
of Liquidating Agent ........................................58
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness..................................................59
SECTION 12.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights................59
SECTION 12.14 Article XII Applicable to Paying Agents...........................59
</TABLE>
- vi -
<PAGE> 8
<TABLE>
<CAPTION>
ARTICLE XIII
<S> <C> <C>
MISCELLANEOUS......................................................................................60
SECTION 13.1 Trust Indenture Act Controls.......................................60
SECTION 13.2 Notices............................................................60
SECTION 13.3 Communication by Holders with Other Holders........................61
SECTION 13.4 Certificate and Opinion as to Conditions Precedent.................61
SECTION 13.5 Statements Required in Certificate or Opinion......................62
SECTION 13.6 Separability Clause................................................62
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar.......................62
SECTION 13.8 Legal Holidays.....................................................62
SECTION 13.9 Governing Law......................................................63
SECTION 13.10 No Recourse Against Others.........................................63
SECTION 13.11 Successors.........................................................63
SECTION 13.12 Effect of Headings and Table of Contents...........................63
SECTION 13.13 Benefits of Indenture..............................................63
SECTION 13.14 Multiple Originals.................................................63
ARTICLE XIV
GUARANTEES.........................................................................................64
SECTION 14.1 Guarantee .......................................................64
</TABLE>
- vii -
<PAGE> 9
INDENTURE, dated as of ____________, by and among AIMCO Properties,
L.P., a Delaware limited partnership (the "Company"), Apartment Investment and
Management Company, a Maryland corporation (the "Guarantor"), and United States
Trust Company of New York, a New York corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
For value received, the execution and delivery by the Guarantor of this
Indenture to provide for the issuance of the Guarantee provided for herein (if
made applicable in accordance with Section 2.3) has been duly authorized. All
things necessary to make this Indenture a valid agreement of the Guarantor, in
accordance with its terms, have been done.
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 ratable benefit of the Holders of the Securities or each series
thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions
"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 or cause the direction of 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.
"Board of Directors" means either the board of directors of the General
Partner of the Company or any committee of such board authorized with respect to
any matter to exercise the powers of the Board of Directors of the General
Partner of the Company.
<PAGE> 10
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"cash" means such coin or currency of the United States as at any time
of payment is legal tender for the payment of public and private debts.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by the Chairman of the Board, any Vice
Chairman, the President or any Vice President of its General Partner, and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
its General Partner, and delivered to the Trustee or, with respect to Sections
2.4, 2.8, 2.11 and 7.2, any other employee of its General Partner named in an
Officers' Certificate delivered to the Trustee.
"Debt" means with respect to any person at any date, without
duplication (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person, (iv) all
obligations of such person pursuant to leases which are required to be
capitalized under generally accepted accounting principles consistently applied
and (v) all Debt of others for the payment of which such person is responsible
or liable as obligor or guarantor.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a)
- 2 -
<PAGE> 11
as the Depositary with respect to such series of Securities, until a successor
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include such successor.
"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 6.2.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"General Partner" means the general partner of AIMCO Properties, L.P.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article XII.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 14(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively, a
written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"Holder" or "Securityholder," when used with respect to any Security,
means a person in whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
- 3 -
<PAGE> 12
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the Principal of such Security or an installment of Principal or, in the
case of a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the General Partner of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President or any
Vice President of its General Partner, and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of its General Partner, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, its
General Partner, the Trustee, or the Guarantor, as the case may be.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on the Securities of that series are
payable as specified as contemplated by Section 2.3(a).
"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;
- 4 -
<PAGE> 13
and, for the purposes of this definition, any Security authenticated and
delivered under Section 2.9 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal" or "Principal Amount" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "redemption price," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securityholder" or "Holder," when used with respect to any Security,
means a person in whose name a Security is registered on the Registrar's books.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
2.13.
"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 as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest thereon is due
and payable.
"Subsidiary" means, with respect to any person, a corporation of which
a majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries of such person or
(iii) one or more Subsidiaries of such person.
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"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"United States" means the United States of America, its territories,
its possessions (including the Commonwealth of Puerto Rico), and other areas
subject to its jurisdiction.
SECTION 1.2 Other Definitions
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Date" 2.11
"Guaranteed Securities" 2.3
"Legal Holiday" 13.8
"Notice of Default " 6.1
"Outstanding" 2.10
"Paying Agent" 2.5
"Registrar" 2.5
"Senior Indebtedness" 12.1
</TABLE>
SECTION 1.3 Incorporation by Reference of Trust Indenture Act Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
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<PAGE> 15
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 Rules of Construction Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally The Securities of each series shall be in
substantially such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities as evidenced by their
execution of the Securities. The Officers' Certificate so establishing the form
of Security of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.4 for the authentication
and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such
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Securities may be listed, all as determined by the Officers executing such
Securities as evidenced by their execution of such Securities.
SECTION 2.2 Securities in Global Form If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), 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
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount of
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 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in 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 2.4 or 2.11 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 13.4 or 13.5 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 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 13.4 or 13.5 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 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless
otherwise specified as contemplated by Section 2.3(a), payment of Principal of
and any interest on any Security in global form shall be made to the person or
persons specified therein.
SECTION 2.3 Title, Terms and Denominations
(a) The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an
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<PAGE> 17
Officers' Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the
Securities of the series which 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 Sections 2.8, 2.9, 2.11, 3.6, 9.5
or 10.3 and except for any Securities which, pursuant to Section 2.4,
are deemed never to have been authenticated and delivered hereunder);
(3) whether any Securities of the series may be represented
initially by a Security in temporary or permanent global form and, if
so, the initial Depositary with respect to any such temporary or
permanent global Security, and if other than as provided in Section 2.8
or Section 2.11, as applicable, whether and the circumstances under
which beneficial owners of interests in any such temporary or permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination;
(4) the person to whom any interest on any 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, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities
of the series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 4.5, the Principal of and any interest on Securities of the
series shall be payable, any Securities of the series may be
surrendered for registration of transfer, Securities
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of the series may be surrendered for exchange and notices and demands
to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, the
conditions, if any, giving rise to such obligation, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, and any provisions for the remarketing
of such Securities;
(10) the denominations in which any Securities of the series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) if other than the Principal Amount thereof, the portion
of the Principal Amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.2;
(12) if other than as defined in Section 1.1, the meaning of
"Business Day" when used with respect to any Securities of the series;
(13) the terms and conditions, if any, upon which the
Securities of the series may or must be converted into securities of
the Company or exchanged for securities of the Company;
(14) any terms applicable to Original Issue Discount (as that
term is defined in the Internal Revenue Code of 1986 and the
Regulations thereunder), if any, including the rate or rates at which
such Original Issue Discount, if any, shall accrue;
(15) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
Principal of or any interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
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(16) if the Guarantor has guaranteed the obligations of the
Company with respect to the Securities of the series (any such
guaranteed securities being "Guaranteed Securities"); and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.1(7)).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided in or pursuant to an Officers' Certificate pursuant to
this Section 2.3(a) or in any 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 for issuances of additional Securities of
such series or for the establishment of additional terms with respect to the
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of any appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the General
Partner of the Company and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of the series. With respect
to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officers' Certificate may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Execution, Authentication, Delivery and Dating The
Securities shall be executed on behalf of the Company by the Chairman of the
Board, any Vice Chairman, the President or any Vice President of its General
Partner, or the Treasurer or any Assistant Treasurer of its General Partner,
under its corporate seal reproduced thereon attested by the Secretary or any
Assistant Secretary of its General Partner. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the General Partner of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such
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<PAGE> 20
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series 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 such Company Order shall authenticate and deliver such Securities;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if
any, and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 2.1 and 2.3(a), in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form and terms of such Securities have been duly
authorized by the Company and established in conformity with the provisions of
this Indenture; and
(b) that such Securities when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
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<PAGE> 21
(x) that the forms of such Securities have been, and the terms
of such Securities (when established in accordance with such procedures
as may be specified from time to time in a Company Order, all as
contemplated by and in accordance with a Board Resolution or an
Officers' Certificate pursuant to Section 2.3(a), as the case may be)
will have been, duly authorized by the Company and established in
conformity with the provisions of this Indenture; and
(y) that such Securities when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and (3) issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary
exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding
three paragraphs, if all Securities of a series are subject to a Periodic
Offering, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 2.3(a) at or prior to the time of
authentication of each Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication
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<PAGE> 22
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. The Trustee's certificate
of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
United States Trust Company of New York, as
Trustee
By:
---------------------------------------------
Authorized Signatory
Notwithstanding the foregoing, if any Security shall have been duly
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 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 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 2.5 Registrar and Paying Agent The Company or the Guarantor (if
the Securities are Guaranteed Securities) shall maintain, with respect to each
series of Securities, an office or agency where such Securities may be presented
for registration of transfer or for exchange ("Registrar") and, in the Borough
of Manhattan, The City of New York, an office or agency where such Securities
may be presented for purchase or payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company or the Guarantor, as the case may be, may have one or more co-registrars
and one or more additional paying agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with
respect to each series of Securities with any Registrar, Paying Agent or
co-registrar (if not the Trustee). The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company or the
Guarantor (if the Securities are Guaranteed Securities) fails
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to maintain a Registrar or Paying Agent for a particular series of Securities,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or the Guarantor, as the case may
be, or any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust Except
as otherwise provided herein, prior to or on each due date of payments in
respect of any series of Securities, the Company or the Guarantor (if the
Securities are Guaranteed Securities) shall deposit with the Paying Agent with
respect to such Securities a sum of money sufficient to make such payments when
so becoming due. The Company or the Guarantor, as the case may be, shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by such Paying Agent for the making of payments in respect of the
Securities of such series and shall notify the Trustee of any default by the
Company or the Guarantor, as the case may be, in making any such payment. At any
time during the continuance of any such default, a Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money so held
in trust with respect to such Securities. If the Company or the Guarantor, as
the case may be, or a Subsidiary or an Affiliate of either of them acts as
Paying Agent for a series of Securities, it shall segregate the money held by it
as Paying Agent with respect to such Securities and hold it as a separate trust
fund. The Company or the Guarantor, as the case may be, at any time may require
a Paying Agent for a series of Securities to pay all money held by it with
respect to such Securities to the Trustee and to account for any money disbursed
by it. Upon doing so, such Paying Agent shall have no further liability for the
money.
SECTION 2.7 Securityholder Lists The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of each series of Securities. If the
Trustee is not the Registrar for any series of Securities, the Company or the
Guarantor (if the Securities are Guaranteed Securities) shall cause to be
furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Holders of such series of Securities dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of such series
of Securities.
SECTION 2.8 Transfer and Exchange Upon surrender for registration of
transfer of any Security at the office or agency of the Company or the Guarantor
(if the Securities are Guaranteed Securities) designated pursuant to Section 4.5
for such purpose, the Company and the Guarantor, as the case may be, shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or
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<PAGE> 24
more new Securities of any authorized denomination or denominations of a like
aggregate Principal Amount and tenor. The Company and the Guarantor, as the case
may be, shall not charge a service charge for any registration of transfer or
exchange, but the Company and the Guarantor, as the case may be, may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the
Securities from the Securityholder requesting such transfer or exchange (other
than any exchange of a temporary Security for a definitive Security not
involving any change in ownership or any exchange pursuant to Section 2.11, 3.6,
9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set
forth in the sixth and seventh paragraphs) of this Section, a Security in global
form representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denomination or
denominations, of a like aggregate Principal Amount and tenor, upon surrender of
the Securities to be exchanged at the office or agency of the Company or the
Guarantor (if the Securities are Guaranteed Securities) designated as such
pursuant to Section 4.5 for the purpose of exchanges of Securities of such
series. Whenever any Securities are so surrendered for exchange, the Company and
the Guarantor (if the Securities are Guaranteed Securities) shall execute, and
the Trustee or a duly appointed authenticating agent shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Securities of a series notifies
the Company or the Guarantor (if the Securities are Guaranteed Securities) that
it is unwilling or unable to continue as Depositary for the Securities of such
series, the Company or the Guarantor, as the case may be, shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company or the Guarantor, as the case may be, within 90 days after the Company
or the Guarantor, as the case may be, receives such notice, the Company or the
Guarantor, as the case may be, will execute, and the Trustee, upon receipt of a
Company Order or Guarantor Order, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate Principal Amount
equal to the Principal Amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
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<PAGE> 25
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company or the Guarantor, as the case may be, will execute, and the
Trustee, upon receipt of a Company Order or Guarantor Order, as the case may be,
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to
exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall deliver to the Trustee definitive Securities in aggregate
Principal Amount equal to the Principal Amount of such permanent global
Security, executed by the Company or the Guarantor, as the case may be,. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Depositary with respect
thereto to the Trustee, as the Company's (or the Guarantor's, as the case may
be), 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 permanent 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
permanent global Security to be exchanged; provided, however, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date. If a 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 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.
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<PAGE> 26
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
Securities issued in exchange for a Security in global form pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor (if
such Securities are Guaranteed Securities), 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 Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Guarantor or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Guarantor, as the case may be, and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Security so selected for redemption, in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 2.9 Replacement Securities If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company, the Guarantor (if the Securities are Guaranteed Securities) or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company and the Guarantor (if the Securities are Guaranteed Securities) shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company or the Guarantor (if
the Securities are Guaranteed Securities) in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Securities under this Section, the Company
or the Guarantor (if the Securities are Guaranteed Securities) 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 issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and the Guarantor (if
the Securities are Guaranteed Securities), whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and any such new
Security shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of that issue 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.
SECTION 2.10 Outstanding Securities; Determinations of Holders' Action
Securities of any series "Outstanding" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "Outstanding" because the Company or the
Guarantor (if the Securities are Guaranteed Securities) or an Affiliate thereof
holds the Security; provided, however, that in determining whether the Holders
of the requisite Principal Amount of Outstanding Securities have given or
concurred in any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or the Guarantor, as the case
may be, or any other obligor upon the Securities or any Affiliate of the Company
or the Guarantor, as the case may be, or such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected 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 the
Guarantor, as the case may be, or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor, as the case may be, or of such other
obligor. Subject to the foregoing, only Securities outstanding
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at the time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles VI and IX).
In addition, in determining whether the Holders of the requisite Principal
Amount of Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, the Principal
Amount of a Discount Security that shall be deemed to be Outstanding shall be
the amount of the Principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.2.
If a Security has been paid pursuant to Section 2.9 or in exchange for
or in lieu of which another Security has been authenticated and delivered
pursuant to this Indenture, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the Trustee (other than the Company or the Guarantor (if the
Securities are Guaranteed Securities)) holds, in accordance with this Indenture,
on a Redemption Date or on Stated Maturity, money sufficient to pay Securities
payable on that date, then on and after that date such Securities shall cease to
be outstanding and interest, if any, on such Securities shall cease to accrue;
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.
SECTION 2.11 Temporary Securities Pending the preparation of definitive
Securities of any series, the Company or the Guarantor (if the Securities are
Guaranteed Securities) may execute, and upon Company Order or Guarantor Order,
as the case may be, 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, 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. Such temporary
Securities may be in global form.
If temporary Securities for some or all of the Securities of any series
are issued, the Company or the Guarantor (if the Securities are Guaranteed
Securities) will cause definitive Securities representing such Securities to be
prepared without unreasonable delay. After the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company or the Guarantor, as the case may be, designated
as such pursuant to Section 4.5 for the purpose of exchanges of Securities of
such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company or the Guarantor,
as the case may be, shall execute and the Trustee shall authenticate and deliver
in exchange therefor a
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like Principal Amount of definitive Securities of the same series and of like
tenor of authorized denominations. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
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 permanent Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 2.12 Cancellation All Securities surrendered for payment,
redemption, 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 all Securities so delivered shall be
promptly cancelled by it. The Company or the Guarantor (if the Securities are
Guaranteed Securities) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor, as the case may be, may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company or the Guarantor, as the case may be, may not reissue, or issue new
Securities to replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted in the form of Securities for any particular series or as permitted by
this Indenture. All cancelled Securities held by the Trustee shall be destroyed
by the Trustee and evidence of their destruction delivered to the Company or the
Guarantor, as the case may be, unless the Company or the Guarantor, as the case
may be, directs by Company Order or Guarantor Order, as the case may be, that
the Trustee deliver cancelled Securities to the Company or the Guarantor, as
the case may be.
SECTION 2.13 Payment of Interest; Interest Rights Preserved Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Security which 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.
Any interest on any Security of any series which 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 Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor (if the
Securities are Guaranteed Securities), at its election in each case, as provided
in clause (1) or (2) below:
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(1) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may elect to make payment of any Defaulted Interest to the
persons in whose names the 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 or the Guarantor, as
the case may be, shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, and at the same time the Company or the Guarantor,
as the case may be, shall deposit with the Trustee an amount of money
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 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 or the Guarantor, as the case
may be, of such Special Record Date and, in the name and at the expense of
the Company or the Guarantor, as the case may be, 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
Securities at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
persons in whose names the Securities (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).
(2) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may make payment of any Defaulted Interest on the Securities
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 or the Guarantor, as the case may be, 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 2.8,
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 2.14 Persons Deemed Owners Prior to due presentment of a
Security for registration of transfer, the Company, the Guarantor (if the
Securities are Guaranteed
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Securities), the Trustee and any agent of the Company, the Guarantor (if the
Securities are Guaranteed Securities) or the Trustee may treat the person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of Principal of and (except as otherwise specified
as contemplated by Section 2.3(a) and subject to Section 2.8 and Section 2.13)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Guarantor (if the
Securities are Guaranteed Securities), the Trustee nor any agent of the Company,
the Guarantor (if the Securities are Guaranteed Securities) or the Trustee shall
be affected by notice to the contrary.
None of the Company, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee, any Paying Agent or the 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.
SECTION 2.15 Computation of Interest Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on
any Securities which bear interest at a fixed rate shall be computed on the
basis of a 360-day year comprised of twelve 30-day months and (ii) interest on
any Securities which bear interest at a variable rate shall be computed on the
basis of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 Right to Redeem; Notices to Trustee 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount and any other information necessary to identify the Securities of such
series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 Selection of Securities to be Redeemed Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to
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be redeemed, the Trustee shall select the particular Securities to be redeemed
by a method the Trustee considers fair and appropriate, which method 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 make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 Notice of Redemption Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption
Price; and
(6) that the redemption is for a sinking fund, if such is the case.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Company Notice shall be prepared
by the Company.
SECTION 3.4 Effect of Notice of Redemption Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the
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Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 2.3(a), installments of interest on
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 Sections 2.8 and
2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 Deposit of Redemption Price Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 Securities Redeemed in Part Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company designated therefor pursuant to Section 4.5 (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, upon such surrender,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Security or Securities of the same series and of
like tenor, in an authorized denomination, as requested by such Holder, equal in
aggregate Principal Amount to, and in exchange for, the unredeemed portion of
the Principal of the Security surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities The Company or the Guarantor (if the
Securities are Guaranteed Securities) shall promptly make all payments in
respect of each series of Securities on the dates and in the manner provided in
the Securities and, to the extent not otherwise so provided, pursuant to this
Indenture. An installment of Principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or a Paying Agent (other
than the Company or the Guarantor, as the case may be, or an Affiliate of the
Company or the Guarantor, as the case may be) holds on that date funds
designated for and sufficient to pay such installment. At the Company's or the
Guarantor's (if the Securities are Guaranteed Securities) option, payments of
Principal or interest may be made by check or by transfer to an account
maintained by the payee.
SECTION 4.2 SEC Reports The Company or the Guarantor (if the Securities
are Guaranteed Securities) shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company or the Guarantor, as the
case may be, also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.3 Compliance Certificate The Company and the Guarantor (if
the Securities are Guaranteed Securities) shall each deliver to the Trustee
within 120 days after the end of each of their respective fiscal year (beginning
with the first fiscal year ending on or after the date hereof), an Officers'
Certificate and Guarantor's Officers' Certificate, as the case may be, stating
whether or not the signers know of any Default that occurred during such period.
If they do, such Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, shall describe the Default and its status.
SECTION 4.4 Further Instruments and Acts Upon request of the Trustee,
the Company and the Guarantor (if the Securities are Guaranteed Securities) will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 4.5 Maintenance of Office or Agency The Company or the
Guarantor (if the Securities are Guaranteed Securities) will maintain in the
Borough of Manhattan, the City of New York, an office or agency where Securities
of that series may be presented or surrendered for payment, where any
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange,
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purchase or redemption and where notices and demands to or upon the Company or
the Guarantor, as the case may be, in respect of the Securities of that series
and this Indenture may be served. The office of the Trustee in New York, New
York shall be such office or agency for all of the aforesaid purposes unless the
Company or the Guarantor, as the case may be, shall maintain some other office
or agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change in the location, of such other office or agency.
If at any time the Company or the Guarantor, as the case may be, shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, and the Company or the Guarantor, as the case may be,
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may also 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 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 or the Guarantor, as the case may be, 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 or
the Guarantor, as the case may be, 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.
SECTION 4.6 Limitations on the Incurrence of Certain Other Debt The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either pari passu with the Securities or
subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge or Transfer Assets The Company and
the Guarantor (if the Securities are Guaranteed Securities) shall not
consolidate with or merge with or into any other person or convey, transfer or
lease its properties and assets substantially as an entirety to any person,
unless:
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(a) either (1) the Company or the Guarantor, as the case may be,
shall be the continuing entity or (2) the person (if other than the
Company or the Guarantor, as the case may be) formed by such
consolidation or into which the Company or the Guarantor, as the case
may be, is merged or the person which acquires by conveyance, transfer or
lease the properties and assets of the Company or the Guarantor, as the
case may be, substantially as an entirety (i) shall be a corporation,
partnership or trust organized and validity existing under the laws of
the United States or any state thereof or the District of Columbia and
(ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company or the Guarantor, as the
case may be, under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate or, if applicable, the Guarantor shall have delivered to the
Trustee a Guarantor's Officers' Certificate, and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein relating to such transaction
have been satisfied.
The successor person formed by such consolidation or into which the
Company or the Guarantor, as the case may be, is merged or the successor person
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or the
Guarantor, as the case may be, under this Indenture, with the same effect as if
such successor had been named as the Company or the Guarantor, as the case may
be, herein; and thereafter, except in the case of a lease of its properties and
assets substantially as an entirety, the Company or the Guarantor, as the case
may be, shall be discharged from all obligations and covenants under this
Indenture and the Securities.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of securities, an
"Event of Default" occurs, with respect to each series of the Securities
individually, if:
(1) the Company or the Guarantor (if the Securities are Guaranteed
Securities) defaults in (a) the payment of the principal of any Security
of such series at its Maturity or (b) the payment of any interest upon
any Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company or the Guarantor (if the Securities are Guaranteed
Securities) fails to comply with any of its agreements in the Securities
or this Indenture (other than those referred to in clause (1) above and
other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of
another series of Securities) and such failure continues for 60 days
after receipt by the Company or the Guarantor, as the case may be, of a
Notice of Default;
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or the Guarantor, as the case may be, in an involuntary case or
proceeding under any applicable Bankruptcy Law or (b) a decree or order
adjudging the Company or the Guarantor, as the case may be, bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor, as the case
may be, under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or the Guarantor, as the case may
be, or of any substantial part of its property, or ordering the wind up
or liquidation of its affairs, and any such decree or order for relief
shall continue to be in effect, or any such other decree or order shall
be unstayed and in effect, for a period of 60 consecutive days;
(4) (a) the Company or the Guarantor (if the Securities are
Guaranteed Securities) commences a voluntary case or proceeding under
any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (b) the Company or the Guarantor, as
the case may be, consents to the entry of a decree or order for relief in
respect of the Company or the Guarantor, as the case may be, in an
involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding
against it, (c) the
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Company or the Guarantor, as the case may be, files a petition or answer
or consent seeking reorganization or substantially comparable relief
under any applicable federal or state law, (d) the Company or the
Guarantor, as the case may be, (x) consents to the filing of such
petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or the Guarantor, as the case may be, or of any
substantial part of its property, (y) makes an assignment for the benefit
of creditors or (z) admits in writing its inability to pay its debts
generally as they become due or (e) the Company or the Guarantor, as the
case may be, takes any action in furtherance of any such actions in this
clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of such series notify the Company, the Guarantor, as the
case may be, and the Trustee, of the Default and the Company or the Guarantor,
as the case may be, does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.2 Acceleration If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series by notice to the Company, the Guarantor,
as the case may be, and the Trustee, may declare the Principal Amount (or, if
any of the Securities of that series are Discount Securities, such portion of
the Principal Amount of such Securities as may be specified in the terms
thereof) of all the Securities of that series to be immediately due and payable.
Upon such a declaration, such Principal (or portion thereof) shall be due and
payable immediately. If an Event of Default specified in Section 6.1(3) or (4)
occurs and is continuing, the Principal (or portion thereof) of all the
Securities of that series shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of any series, by notice to the Trustee (and without
notice to any other Securityholder) may rescind an acceleration with respect to
that series and its consequences if the rescission would not conflict with any
judgment or decree and all
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existing Events of Default with respect to Securities of such series have been
cured or waived except nonpayment of the Principal (or portion thereof) of
Securities of such series that has become due solely as a result of such
acceleration and if all amounts due to the Trustee under Section 7.7 have been
paid. No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.3 Other Remedies If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series waive an existing
Default with respect to such series and its consequences except (1) an Event of
Default described in Section 6.1(1) with respect to such series or (2) a Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.5 Control by Majority The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits A Holder of any Security of any series
may not pursue any remedy with respect to this Indenture or the Securities
unless:
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(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 Rights of Holders to Receive Payment Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security to receive payment of the Principal
of and (subject to Section 2.13) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected adversely without the consent of each
such Holder.
SECTION 6.8 Collection Suit by Trustee If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or the Guarantor, as the case may be, for
the whole amount owing with respect to such series of Securities and the amounts
provided for in Section 7.7.
SECTION 6.9 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, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon the Securities or the property of the Company, the Guarantor,
as the case may be, or of such other obligor or their creditors, the Trustee
(irrespective of whether the Principal of the Securities 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 or the Guarantor,
as the case may be, for the payment of overdue Principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section
7.7) and of the Holders of Securities allowed in such judicial
proceeding, and
(b) 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
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities 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
of Securities, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Senior Indebtedness to authorize or consent to or accept or adopt
on behalf of any Holder of a Security any plan of reorganization, arrangement,
adjustment or composition affecting the Securities 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 in any such proceeding.
SECTION 6.10 Priorities If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities, 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 Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided for in Article
XII;
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities 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 amounts due and payable on such Securities for Principal
and interest, respectively; and
FOURTH: the balance, if any, to the Company.
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The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs 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, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in aggregate Principal Amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the Principal of or interest on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 6.12 Waiver of Stay, Extension or Usury Laws The Company and
the Guarantor (if the Securities are Guaranteed Securities), in each case,
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 stay or extension law or any usury or other 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 and the
Guarantor, as the case may be, (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.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and shall not be liable except
for the performance of such duties; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) 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 not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 Rights of Trustee (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
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(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.3 Individual Rights of Trustee, etc The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates or with the Guarantor
(if the Securities are Guaranteed Securities) or its Affiliates, with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar or any other agent of the Company or the Guarantor, as the case may
be, may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities. The Trustee
shall not be accountable for the Company's or the Guarantor's (if the
Securities are Guaranteed Securities) use of the proceeds from the Securities
and shall not be responsible for any statement in the registration statement for
the Securities under the Securities Act of 1933, as amended, or in the Indenture
or the Securities (other than its certificate of authentication) or for the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.5 Notice of Defaults If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. The Trustee shall have no duty to inquire as to the
performance of the Company's or the Guarantor's (if the Securities are
Guaranteed Securities) covenants in Article IV hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default except
(i) any Event of Default occurring pursuant to Section 4.1 or 6.1(l), or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.6 Reports by Trustee to Holders Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of
Securities shall be filed with the SEC and each stock exchange on which the
Securities of that series may be listed. The Company and the Guarantor (if the
Securities are Guaranteed Securities) agrees to notify the Trustee whenever the
Securities of a particular series become listed on any stock exchange and of any
delisting thereof.
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SECTION 7.7 Compensation and Indemnity The Company and the Guarantor
(if the Securities are Guaranteed Securities) each agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the 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, advances 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
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, 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.
To secure the Company's and the Guarantor's (if the Securities are
Guaranteed Securities) payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the Principal of or
interest, if any, on particular Securities.
The Company's and the Guarantor's (if the Securities are Guaranteed
Securities) payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee The Trustee may resign by so
notifying the Company and the Guarantor (if the Securities are Guaranteed
Securities); provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.8. The
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company and the Guarantor (if the Securities
are Guaranteed Securities) shall remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
series, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall promptly appoint, by resolution of their respective boards of
directors, as applicable, a successor Trustee 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 series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company and
the Guarantor (if the Securities are Guaranteed Securities). Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
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
Guarantor (if the Securities are Guaranteed Securities), 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 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
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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 as 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, the Guarantor (if the Securities are Guaranteed
Securities) 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, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of such series at the time outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of any series fails to
comply with Section 7.10, any Holder of a Security of such series may petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
SECTION 7.9 Successor Trustee by Merger If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
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SECTION 7.11 Preferential Collection of Claims Against Company The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Discharge of Liability on Securities Except as otherwise
provided as contemplated by Section 2.3(a), when (a) the Company or the
Guarantor (if the Securities are Guaranteed Securities) delivers to the Trustee
for cancellation all Outstanding Securities or all Outstanding Securities of
any series, as the case may be, theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company or the Guarantor, as the case may be, and thereafter repaid
to the Company or the Guarantor, as the case may be, or discharged from such
trust, as provided in Section 2.6), or (b) all Outstanding Securities or all
Outstanding Securities of any series have become due and payable and the Company
or the Guarantor, as the case may be, deposits with the Trustee cash sufficient
to pay at Stated Maturity the Principal Amount of all Principal of and interest
on such Outstanding Securities (other than Securities replaced pursuant to
Section 2.9), and if in either case the Company or the Guarantor, as the case
may be, pays all other sums payable hereunder by the Company or the Guarantor,
as the case may be, then this Indenture shall, subject to Section 7.7, cease to
be of further effect as to such Outstanding Securities. The Trustee shall join
in the execution of a document prepared by the Company or the Guarantor, as the
case may be, acknowledging satisfaction and discharge of this Indenture on
demand of the Company or the Guarantor, as the case may be, accompanied by an
Officers' Certificate or Guarantor's Officers' Certificate, respectively, and
Opinion of Counsel and at the cost and expense of the Company or the Guarantor,
as the case may be.
SECTION 8.2 Repayment to the Company The Trustee and the Paying Agent
shall return to the Company or the Guarantor (if the Securities are Guaranteed
Securities) on Company Request or Guarantor Request, as the case may be, any
money held by them for the payment of any amount with respect to the Securities
that remains unclaimed for two years; provided, however, that the Trustee or
such Paying Agent, before being required to make any such return, may at the
expense and direction of the Company or the Guarantor, as the case may be, mail
to each Holder of such Securities 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 mailing, any unclaimed money then remaining will be returned to
the Company or the Guarantor, as the case may be. After return to the Company or
the Guarantor, as the case may be, Holders entitled to the money must look to
the Company or the Guarantor, as the case may be, for payment as general
creditors unless an applicable abandoned property law designates another
person.
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SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.4 Defeasance and Discharge Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.4, the Company and the
Guarantor (if the Securities are Guaranteed Securities) each shall be deemed to
have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company and the
Guarantor, as the case may be, shall be deemed to have paid and discharged the
entire indebtedness represented by the defeased Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Sections 2.4,
2.5, 2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8 and 8.2 of this
Indenture and to have satisfied all its other obligations under such series of
Securities and this Indenture insofar as such series of Securities are concerned
(and the Trustee, at the expense of the Company and, upon written request, shall
execute proper instruments acknowledging the same). Subject to compliance with
this Article VIII, the Company may exercise its option under this Section 8.4
notwithstanding the prior exercise of its option under Section 8.5 with respect
to a series of Securities.
SECTION 8.5 Covenant Defeasance Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.5, the Company and the
Guarantor, as the case may be, shall be released from its obligations under
Sections 4.2 and 4.3 and Article V and such other provisions as may be provided
as contemplated by Section 2.3(a) with respect to Securities of a particular
series and with respect to the Defeased Securities on and after the date the
conditions set forth below are satisfied (hereinafter "covenant defeasance"),
and the Defeased Securities 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 if any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company and the Guarantor, as the case may be, 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 Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provisions herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1 but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
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SECTION 8.6 Condition to Defeasance or Covenant Defeasance The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company or the Guarantor (if the Securities are Guaranteed
Securities) shall have irrevocably deposited with the Trustee, in trust, (i)
sufficient funds to pay the Principal of and interest to Stated Maturity (or
redemption) on, the Securities of such series, or (ii) such amount of direct
obligations of, or obligations the principal of and interest on which are fully
guaranteed by, the government of the United States, and which are not subject to
prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the Principal of, and interest to Stated
Maturity (or redemption) on, the Securities of such series.
(b) The Company shall have delivered to the Trustee an opinion of
counsel to the effect that the funds deposited pursuant to Section 8.6(a) will
not be subject to any rights of the holders of Senior Indebtedness.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders Without
the consent of any Holders of Securities, the Company, the Guarantor (if the
Securities are Guaranteed Securities) 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 corporation to the Company
or the Guarantor, as the case may be, and the assumption by any such
successor of the covenants of the Company or the Guarantor, as the case
may be, herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company or the Guarantor, as the case may be, for the benefit of the
Holders of all of the Securities or any series thereof, or to surrender
any right or power herein conferred upon the Company or the Guarantor, as
the case may be; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3(a), respectively; or
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(4) 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, pursuant
to the requirements of Section 7.8; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(7) to secure the Securities; or
(8) to make any other change that does not adversely affect the
rights of any Securityholder.
SECTION 9.2 Supplemental Indentures with Consent of Holders With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee may amend this Indenture or the
Securities of any series or 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 the Securities of such
series under this Indenture; provided, however, that no such amendment or
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 any
installment of Principal of or interest on, any such Security, or reduce
the Principal Amount thereof or the rate of interest thereon or any
premium payable upon redemption thereof or reduce the amount of Principal
of any such Discount Security that would be due and payable upon a
declaration of acceleration of maturity thereof pursuant to Section 6.2,
or change the Place of Payment, or change the coin or currency in which
any Principal of, or any installment of interest on, any such Security 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, on or after the Redemption Date);
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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 amendment or supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences
with respect to the Securities of such series provided for in this
Indenture;
(3) make any change in the terms of the Subordination of the
Securities in a manner adverse to the Holders of any series of
outstanding Securities; or
(4) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such
series required for such actions 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.
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.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplemental indenture, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplemental indenture under this Section 9.2
becomes effective, the Company and the Guarantor (if the Securities are
Guaranteed Securities) shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 Compliance with Trust Indenture Act Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 Revocation and Effect of Consents, Waivers and Actions
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation
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before the Company or the Guarantor (if the Securities are Guaranteed
Securities) or an agent of the Company or the Guarantor, as the case may be,
certifies to the Trustee that the consent of the requisite aggregate Principal
Amount of the Securities of that series has been obtained. After an amendment,
waiver or action becomes effective, it shall bind every Holder of Securities of
that series.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 Notation on or Exchange of Securities Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series 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 and the
Guarantor (if the Securities are Guaranteed Securities) shall so determine, new
Securities of such series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and the Guarantor, as the case may be, and
authenticated and delivered by the Trustee in exchange for outstanding
Securities of that series.
SECTION 9.6 Trustee to Sign Supplemental Indentures The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 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 shall be bound thereby, except
to the extent otherwise set forth thereon.
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ARTICLE X
SINKING FUNDS
SECTION 10.1 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 2.3(a) 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 Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 10.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), and (2) may apply as a credit Securities of a series with the same
issue date, interest rate and Stated Maturity which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case, in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of such series
with the same issue date, interest rate and Stated Maturity; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 10.3 Redemption of Securities for Sinking Fund Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 10.2 and will also deliver to the
Trustee any Securities to be so delivered. 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
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.4 and 3.6.
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ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 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 11.2 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 11.1, to be held at such time and at such place in the
Borough of Manhattan, the City of New York or, with the approval of the Company
or the Guarantor (if the Securities are Guaranteed Securities), at any other
place. 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 13.2, 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, the Guarantor (if the Securities
are Guaranteed Securities) 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 11.1, 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, the Guarantor (if the Securities
are Guaranteed Securities) 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 such other place as
shall be determined and approved by the Company or the Guarantor, as the case
may be, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 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, any representatives of the Company and its counsel, and any
representatives of the Guarantor (if the Securities are Guaranteed Securities)
and its counsel.
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SECTION 11.4 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. In the absence of
a quorum within 30 minutes of 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 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 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 11.2(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 an 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 9.2, 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 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in Principal Amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in Principal Amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 11.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings (a) Notwithstanding any other 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
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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 11.7 and the appointment of any proxy shall be proved in the manner
specified in Section 11.7. 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 11.7 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, the Guarantor (if the Securities are Guaranteed Securities) or by
Holders of Securities as provided in Section 11.2 (b), in which case the
Company, the Guarantor (if the Securities are Guaranteed Securities) 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 vote with respect to 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 11.2 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 11.6 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 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 facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
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provided in Section 11.2 and, if applicable, Section 11.4. 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 the
Guarantor (if the Securities are Guaranteed Securities), 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 11.7 Actions of Holders Generally (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. 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 or the Guarantor (if the Securities
are Guaranteed Securities). 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 (subject to
Section 7.1) conclusive in favor of the Trustee and the Company and the
Guarantor (if the Securities are Guaranteed Securities), 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 11.6.
(b) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Securities held by the
person, and the date of holding the same, shall be proved by the books of the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other act of the Holder of any Security in accordance with this
Section 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 or the Company or the Guarantor (if the Securities are
Guaranteed Securities) in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other act in accordance with this Section,
the Company or the Guarantor, as the case may be, may, at its option, by or
pursuant to an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, delivered to the Trustee, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or such other act, but the
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Company or the Guarantor, as the case may be, shall have no obligation to do so.
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 percentage of Outstanding Securities or Outstanding
Securities of a series, as the case may be, 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 or
Outstanding Securities of the series, as the case may be, shall be computed as
of such record date; provided, that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless such request,
demand, authorization, direction, notice, consent, waiver or other act shall
become effective pursuant to the provisions of clause (a) of this Section 11.7
not later than six months after the record date.
ARTICLE XII
SUBORDINATION
SECTION 12.1 Securities Subordinate to Senior Indebtedness Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XII. The
Company and the Guarantor, as applicable, each covenants and agrees, and each
Holder of a Security of any series by such Holder's acceptance thereof likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article XII, the indebtedness represented by the Securities and
the payment of the Principal Amount, interest and such other amounts as provided
for in Section 2.3(a), if any, in respect of each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding)
and other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding,
it is expressly provided that such Debt of the Company shall be
subordinated to any other Debt of the Company, unless such Debt of the
Company expressly provides that such Debt of the Company shall be senior
in right of payment to the Securities;
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(b) any Debt of the Company which by its terms states that such Debt of
the Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities; and
(d) any Debt of the Company to any Affiliate of the Company or Subsidiary
of the Company; and
SECTION 12.2 Payment Over of Proceeds upon Dissolution, Etc. Upon any
distribution of assets of the Company or the Guarantor (if the Securities are
Guaranteed Securities) in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or the
Guarantor, as the case may be, or to their respective creditors, as such,
or to their respective assets, or
(b) any liquidation, dissolution or other winding up of the Company
or the Guarantor (if the Securities are Guaranteed Securities), whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company or the Guarantor (if
the Securities are Guaranteed Securities), then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any
payment on account of the Principal Amount, interest or such other
amounts as may be provided for in Section 2.3(a), if any, in respect of
the Securities; and
(2) any payment or distribution of assets of the Company or the
Guarantor (if the Securities are Guaranteed Securities) of any kind or
character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company or the Guarantor (if the Securities are
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Guaranteed Securities) being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 12.2, the Trustee or the Holder of any Security shall receive any
payment or distribution of assets of the Company or the Guarantor (if the
Securities are Guaranteed Securities) of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
or the Guarantor (if the Securities are Guaranteed Securities) being
subordinated to the payment of the Securities, before all Senior Indebtedness is
paid in full or payment thereof provided for, and if such fact shall then have
been made known to the Trustee as provided in Section 12.10, or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of the Company or the Guarantor (if the Securities are
Guaranteed Securities) for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
For purposes of this Article XII only, the words "cash, property or
securities," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company or the Guarantor (if the Securities are
Guaranteed Securities) as reorganized or readjusted, or securities of the
Company or the Guarantor (if the Securities are Guaranteed Securities) or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinated, at least to the extent provided in this
Article XII with respect to the Securities, to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however, that (i)
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
the Senior Indebtedness are not, without the consent of such holders, altered,
in any manner adverse to such holders, by such reorganization or readjustment.
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The consolidation of the Company or the Guarantor (if the Securities
are Guaranteed Securities) with, or the merger of the Company or the Guarantor
(if the Securities are Guaranteed Securities) into, another corporation or the
liquidation or dissolution of the Company or the Guarantor (if the Securities
are Guaranteed Securities) following the conveyance or transfer of all or
substantially all of its assets to another person upon the terms and conditions
set forth in Article V shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or the Guarantor (if the
Securities are Guaranteed Securities) for the purposes of this Section 12.2 if
the corporation formed by such consolidation or into which the Company or the
Guarantor (if the Securities are Guaranteed Securities) is merged or the person
which acquires by conveyance or transfer all or substantially all of the assets
of the Company or the Guarantor (if the Securities are Guaranteed Securities),
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 12.3 Acceleration of Securities In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.2, then and in each such event the Company and the Guarantor (if the
Securities are Guaranteed Securities) shall promptly notify holders of Senior
Indebtedness of such acceleration. The Company or the Guarantor, as the case may
be, may not pay the Securities until 120 days have passed after such
acceleration occurs and may thereafter pay the Securities if this Article XII
permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company and the
Guarantor (if the Securities are Guaranteed Securities) shall make any payment
to the Trustee or the Holder of any Securities prohibited by the foregoing
provisions of this Section 12.3, and if such facts then shall have been known or
thereafter shall have been made known to the Trustee (as provided in Section
12.10) or to such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in each such event such payment shall be paid over and
delivered forthwith to the Company or the Guarantor, as the case may be, for the
benefit of the holders of Senior Indebtedness by or on behalf of the person
holding such payment.
The provisions of this Section 12.3 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 Default in Senior Indebtedness The Company and the
Guarantor (if the Securities are Guaranteed Securities) may not make any payment
of the Principal Amount, interest or other such amounts as may be provided for
in Section 2.3(a), if any, in respect of the Securities and may not acquire any
Securities for cash or property (other than for Capital Stock of the Company)
if:
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(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity;
and
(2) the default is the subject of judicial proceedings or the Company
or the Guarantor, as the case may be, receives a notice of default
thereof from any person who may give such notice pursuant to the
instrument evidencing or document governing such Senior Indebtedness. If
the Company or the Guarantor, as the case may be, receives any such
notice, then a similar notice received within nine months thereafter
relating to the same default on the same issue of Senior Indebtedness
shall not be effective for purposes of this Section 12.4.
The Company or the Guarantor, as the case may be, may resume payments
on the Securities and may acquire Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company or the
Guarantor (if the Securities are Guaranteed Securities) of the notice
described in clause (2) above and the default is not then the subject of
judicial proceedings; and this Article XII otherwise permits the payment
or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor, as the case may be, shall make any payment to the Trustee or the
Holder of any Security prohibited by the foregoing provisions of this Section
12.4, and if such fact then shall have been known or thereafter shall have been
made known to the Trustee as provided in Section 12.10 or such Holder, as the
case may be, pursuant to the terms of this Indenture, then and in each such
event such payment shall be paid over and delivered forthwith to the Company or
the Guarantor, as the case may be, for the benefit of the holders of the Senior
Indebtedness by or on behalf of the person holding such payment.
The provisions of this Section 12.4 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted if No Default Nothing contained in this
Article XII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company or the Guarantor (if the Securities are Guaranteed
Securities), at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company or the
Guarantor, as the case may be, referred to in Section 12.2 or under the
conditions described in Section 12.3 or 12.4, from making payments at any time
of the Principal Amount, interest or such other amounts as may be provided for
in Section 2.3(a), if any, as the case may be, in respect of the Securities, or
(b) the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the
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payment of or on account of the Principal Amount, interest or such other amounts
as may be provided for in Section 2.3(a), if any, as the case may be, in respect
of the Securities if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 12.10, notice that such payment would
have been prohibited by the provisions of this Article XII.
SECTION 12.6 Subrogation Rights of Holders of Senior Indebtedness
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XII to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities applicable to
the Senior Indebtedness until the Principal Amount, interest or such other
amounts as provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XII, and no payments pursuant to the provisions of this Article XII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company or the Guarantor (if the
Securities are Guaranteed Securities) to or on account of the Senior
Indebtedness.
SECTION 12.7 Provision Solely to Define Relative Rights The provisions
of this Article XII are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall:
(a) impair, as among the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Holders of the Securities, the obligation of the
Company and the Guarantor, as the case may be, which is absolute and
unconditional, to pay to the Holders of the Securities the Principal Amount,
interest or such other amounts as may be provided for in Section 2.3(a), if any,
as the case may be, in respect of the Securities as and when the same shall
become due and payable in accordance with the terms of the Securities and this
Indenture and which, subject to the rights under this Article XII of the holders
of Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company and the Guarantor (if the Securities are Guaranteed
Securities); or
(b) affect the relative rights against the Company or the Guarantor
(if the Securities are Guaranteed Securities) of the Holders of the
Securities and creditors of the Company or the Guarantor (if the
Securities are Guaranteed Securities) other than holders of Senior
Indebtedness; or
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<PAGE> 65
(c) 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 XII of
the holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 12.8 Trustee to Effectuate Subordination Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 12.9 No Waiver of Subordination Provisions 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 Company or the Guarantor (if the
Securities are Guaranteed Securities) or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or the
Guarantor (if the Securities are Guaranteed Securities) with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement 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 dispose of any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any manner for the
collection of Senior Indebtedness and (iv) exercise or refrain from exercising
any rights against the Company or the Guarantor (if the Securities are
Guaranteed Securities) or any other person.
SECTION 12.10 Notice to Trustee The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article XII 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 to or by the Trustee in respect of the Securities, unless and until the
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Trustee shall have received written notice thereof at the address specified in
Section 13.2 from the Company or a holder 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 Section 7.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a Trust
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 money may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of any Security), the
notice with respect to such money provided for in this Section 12.10, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was 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.
Subject to the provisions of Section 7.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a person representing
himself to be a holder of Senior Indebtedness (or a trustee or agent 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 XII, 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 XII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent Upon any payment or distribution of assets of the Company or the Guarantor
(if the Securities are Guaranteed Securities) referred to in this Article XII,
the Trustee, subject to the provisions of Section 7.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company or the Guarantor (if
the Securities are Guaranteed Securities), the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XII.
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SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Indebtedness
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 13.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 12.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
SECTION 12.14 Article XII Applicable to Paying Agents The term
"Trustee" as used in this Article XII shall (unless the context otherwise
requires) be construed as extending to and including the Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article XII in addition to or in place of the Trustee; provided,
however, that Sections 12.10 and 12.12 shall not apply to the Company or the
Guarantor (if the Securities are Guaranteed Securities) or any Affiliate of the
Company or the Guarantor (if the Securities are Guaranteed Securities) if it or
such Affiliate acts as Paying Agent.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 Notices Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
AIMCO Properties, L.P.
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attention: [ ]
if to the Guarantor:
Apartment Investment and Management Company
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attention: [ ]
if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
Attention: Corporate Trust Department
The Company, the Guarantor (if the Securities are Guaranteed
Securities) or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Securities shall be
mailed to such Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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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.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company or the Guarantor (if the Securities are Guaranteed
Securities) mails a notice or communication to the Holders of Securities of a
particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided herein.
SECTION 13.3 Communication by Holders with Other Holders
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee, the Registrar or the Paying Agent with respect to a
particular series of Securities, and anyone else, shall have the protection of
TIA Section 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent Upon
any request or application by the Company or the Guarantor (if the Securities
are Guaranteed Securities) to the Trustee to take any action under this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee:
(1) an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 13.5 Statements Required in Certificate or Opinion Each
Officers' Certificate, Guarantor's Officers' Certificate (if the Securities are
Guaranteed Securities) or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate,
Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Guarantor's Officers' Certificate (if the
Securities are Guaranteed Securities) or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 Separability Clause In case any provision in this
Indenture or in the Securities 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 13.7 Rules by Trustee, Paying Agent and Registrar With respect
to the Securities of a particular series, the Trustee with respect to such
series of Securities may make reasonable rules for action by or a meeting of
Holders of such series of Securities. With respect to the Securities of a
particular series, the Registrar and the Paying Agent with respect to such
series of Securities may make reasonable rules for their functions.
SECTION 13.8 Legal Holidays A "Legal Holiday" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
Principal need not be made at such Place of Payment, or such other action need
not be taken, on such date, but the action shall be taken on the next succeeding
day that is not a Legal Holiday at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or such other date and to the extent applicable no Original
Issue Discount or interest, if any, shall accrue for the intervening period.
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SECTION 13.9 Governing Law THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 No Recourse Against Others A director, officer, employee
or stockholder, as such, of the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall not have any liability for any obligations of the
Company or the Guarantor, as the case may be, under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder of such
Security shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 13.11 Successors All agreements of the Company or the Guarantor
(if the Securities are Guaranteed Securities) in this Indenture and the
Securities shall bind its respective successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 13.12 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 13.13 Benefits of Indenture Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
SECTION 13.14 Multiple Originals The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
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ARTICLE XIV
GUARANTEES
SECTION 14.1 Guarantee The Guarantee set forth in this Article XIV
shall only be in effect with respect to Securities of a series to the extent
such Guarantee is made applicable to such series in accordance with Section 2.3.
The Guarantor hereby unconditionally guarantees to each Holder of a Guaranteed
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest on such Guaranteed Security and
the due and punctual payment of the sinking fund payments (if any) provided for
pursuant to the terms of such Guaranteed Security, when and as the same shall
become due and payable, whether at maturity, by acceleration, redemption,
repayment or otherwise, in accordance with the terms of such Security and of
this Indenture. In case of the failure of the Company punctually to pay any such
principal, premium, interest or sinking fund payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at maturity, upon acceleration,
redemption, repayment or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Company or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium or interest on, and sinking
fund payment required with respect to, the Guaranteed Securities and the
complete performance of all other obligations contained in the Guaranteed
Securities.
This Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time payment on any Guaranteed Security, in whole or in
part, is restricted or must otherwise be restored to the Company or the
Guarantor upon the bankruptcy, liquidation or reorganization of the Company or
otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Company in respect of any amounts paid to such
Holder by the
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Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
any premium and interest on, and sinking fund payments required with respect to,
all Guaranteed Securities shall have been paid in full.
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AIMCO PROPERTIES, L.P.
AIMCO-GP, INC.
its General Partner
By:
----------------------------------
Name:
Title:
Attest:
- --------------------------------------------
Name:
Title:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, as Guarantor, if applicable
By:
----------------------------------
Name:
Title:
Attest:
- --------------------------------------------
Name:
Title:
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<PAGE> 75
UNITED STATES TRUST COMPANY OF NEW
YORK,
as Trustee
By:
----------------------------------
Name:
Title:
Attest:
- --------------------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 4.6
===============================================================================
AIMCO PROPERTIES, L.P.,
AS ISSUER
AND
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
AS GUARANTOR, IF APPLICABLE
SUBORDINATED DEBT SECURITIES
------------------------------------
INDENTURE
Dated as of
-----------------
------------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
===============================================================================
<PAGE> 2
<TABLE>
<CAPTION>
CROSS REFERENCE TABLE (1)
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TIA INDENTURE
SECTION SECTION
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<S> <C> <C>
310 (a)(1).................................................................................7.10
(a)(2).................................................................................N.A.
(a)(3).................................................................................N.A.
(a)(4).................................................................................N.A.
(a)(5).................................................................................7.10
(b)....................................................................................7.10
(b)(1).................................................................................7.10
(c).....................................................................................N.A
311 (a)....................................................................................7.11
(b)....................................................................................7.11
(c)....................................................................................N.A.
312 (a)....................................................................................N.A.
(b)....................................................................................13.3
(c)....................................................................................13.3
313 (a).................................................................................... 7.6
(b).....................................................................................7.6
(c).....................................................................................7.6
(d)....................................................................................N.A.
314 (a).....................................................................................4.2
(b)....................................................................................N.A.
(c)(1).................................................................................N.A.
(c)(2).................................................................................N.A.
(c)(3).................................................................................N.A.
(d).................................................................................. N.A.
(e)................................................................................... N.A.
(f).................................................................................. N.A.
315 (a).................................................................................. N.A.
(b)................................................................................... 7.5
(c)....................................................................................N.A.
(d)....................................................................................N.A.
(e)....................................................................................N.A.
316 (a)(1)(A)..............................................................................N.A.
(a)(1)(B)..............................................................................N.A.
(a)(2).................................................................................N.A.
(b)....................................................................................N.A.
(c)....................................................................................N.A.
</TABLE>
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(1) Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
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<PAGE> 3
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
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<S> <C> <C>
317 (a)(1).................................................................................N.A.
(a)(2).................................................................................N.A.
(b)....................................................................................N.A.
318 (a)....................................................................................N.A.
</TABLE>
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<PAGE> 4
TABLE OF CONTENTS(2)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
RECITALS OF THE COMPANY.............................................................................1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................................................1
SECTION 1.1 Definitions..........................................................1
SECTION 1.2 Other Definitions....................................................6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act....................6
SECTION 1.4 Rules of Construction................................................7
ARTICLE II
THE SECURITIES.............................................................................7
SECTION 2.1 Forms Generally......................................................7
SECTION 2.2 Securities in Global Form............................................8
SECTION 2.3 Title, Terms and Denominations.......................................8
SECTION 2.4 Execution, Authentication, Delivery and Dating......................11
SECTION 2.5 Registrar and Paying Agent..........................................14
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust..................15
SECTION 2.7 Securityholder Lists................................................15
SECTION 2.8 Transfer and Exchange...............................................15
SECTION 2.9 Replacement Securities..............................................18
SECTION 2.10 Outstanding Securities; Determinations of Holders'
Action........................................................19
SECTION 2.11 Temporary Securities...............................................20
SECTION 2.12 Cancellation.......................................................21
SECTION 2.13 Payment of Interest; Interest Rights Preserved.....................21
SECTION 2.14 Persons Deemed Owners..............................................22
SECTION 2.15 Computation of Interest............................................23
ARTICLE III
REDEMPTION................................................................................23
</TABLE>
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(2) Note: This Table of Contents shall not, for any reasons, be deemed to be
part of the Indenture.
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<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 3.1 Right to Redeem; Notices to Trustee.................................23
SECTION 3.2 Selection of Securities to be Redeemed..............................23
SECTION 3.3 Notice of Redemption................................................24
SECTION 3.4 Effect of Notice of Redemption......................................24
SECTION 3.5 Deposit of Redemption Price.........................................25
SECTION 3.6 Securities Redeemed in Part.........................................25
ARTICLE IV
COVENANTS.................................................................................26
SECTION 4.1 Payment of Securities...............................................26
SECTION 4.2 SEC Reports.........................................................26
SECTION 4.3 Compliance Certificate..............................................26
SECTION 4.4 Further Instruments and Acts........................................26
SECTION 4.5 Maintenance of Office or Agency.....................................26
SECTION 4.6 Limitations on the Incurrence of Certain Other Debt.................27
ARTICLE V
SUCCESSOR CORPORATION.....................................................................27
SECTION 5.1 When Company May Merge or Transfer Assets...........................27
ARTICLE VI
DEFAULTS AND REMEDIES.....................................................................29
SECTION 6.1 Events of Default...................................................29
SECTION 6.2 Acceleration........................................................30
SECTION 6.3 Other Remedies......................................................31
SECTION 6.4 Waiver of Past Defaults.............................................31
SECTION 6.5 Control by Majority.................................................31
SECTION 6.6 Limitation on Suits.................................................31
SECTION 6.7 Rights of Holders to Receive Payment................................32
SECTION 6.8 Collection Suit by Trustee..........................................32
SECTION 6.9 Trustee May File Proofs of Claim....................................32
SECTION 6.10 Priorities..........................................................33
SECTION 6.11 Undertaking for Costs...............................................34
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.............................34
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE VII
<S> <C> <C>
TRUSTEE............................................................................................34
SECTION 7.1 Duties of Trustee...................................................34
SECTION 7.2 Rights of Trustee...................................................35
SECTION 7.3 Individual Rights of Trustee, etc...................................36
SECTION 7.4 Trustee's Disclaimer................................................36
SECTION 7.5 Notice of Defaults..................................................36
SECTION 7.6 Reports by Trustee to Holders.......................................36
SECTION 7.7 Compensation and Indemnity..........................................37
SECTION 7.8 Replacement of Trustee..............................................37
SECTION 7.9 Successor Trustee by Merger.........................................39
SECTION 7.10 Eligibility; Disqualification.......................................39
SECTION 7.11 Preferential Collection of Claims Against Company .............. . .40
ARTICLE VIII
SATISFACTION AND DISCHARGE.........................................................................40
SECTION 8.1 Discharge of Liability on Securities................................40
SECTION 8.2 Repayment to the Company............................................40
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance..................41
SECTION 8.4 Defeasance and Discharge............................................41
SECTION 8.5 Covenant Defeasance.................................................41
SECTION 8.6 Condition to Defeasance or Covenant Defeasance......................42
ARTICLE IX
SUPPLEMENTAL INDENTURES............................................................................42
SECTION 9.1 Supplemental Indentures without Consent of Holders..................42
SECTION 9.2 Supplemental Indentures with Consent of Holders.....................43
SECTION 9.3 Compliance with Trust Indenture Act.................................44
SECTION 9.4 Revocation and Effect of Consents, Waivers and
Actions........................................................44
SECTION 9.5 Notation on or Exchange of Securities...............................45
SECTION 9.6 Trustee to Sign Supplemental Indentures.............................45
SECTION 9.7 Effect of Supplemental Indentures...................................45
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE X
<S> <C> <C>
SINKING FUNDS......................................................................................46
SECTION 10.1 Applicability of Article...........................................46
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities..............46
SECTION 10.3 Redemption of Securities for Sinking Fund..........................46
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES...................................................................47
SECTION 11.1 Purposes for which Meetings may be Called..........................47
SECTION 11.2 Call, Notice and Place of Meetings.................................47
SECTION 11.3 Persons Entitled to Vote at Meetings...............................47
SECTION 11.4 Quorum; Action.....................................................48
SECTION 11.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings........................................48
SECTION 11.6 Counting Votes and Recording Action of Meetings....................49
SECTION 11.7 Actions of Holders Generally.......................................50
ARTICLE XII
SUBORDINATION......................................................................................51
SECTION 12.1 Securities Subordinate to Senior Indebtedness ....................51
SECTION 12.2 Payment Over of Proceeds upon Dissolution, Etc.....................52
SECTION 12.3 Acceleration of Securities.........................................54
SECTION 12.4 Default in Senior Indebtedness.....................................54
SECTION 12.5 Payment Permitted if No Default....................................55
SECTION 12.6 Subrogation Rights of Holders of Senior
Indebtedness..................................................56
SECTION 12.7 Provision Solely to Define Relative Rights.........................57
SECTION 12.8 Trustee to Effectuate Subordination................................57
SECTION 12.9 No Waiver of Subordination Provisions..............................57
SECTION 12.10 Notice to Trustee.................................................57
SECTION 12.11 Reliance on Judicial Order or Certificate
of Liquidating Agent ........................................58
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness..................................................59
SECTION 12.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights................59
SECTION 12.14 Article XII Applicable to Paying Agents...........................59
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE XIII
<S> <C> <C>
MISCELLANEOUS......................................................................................60
SECTION 13.1 Trust Indenture Act Controls.......................................60
SECTION 13.2 Notices............................................................60
SECTION 13.3 Communication by Holders with Other Holders........................61
SECTION 13.4 Certificate and Opinion as to Conditions Precedent.................61
SECTION 13.5 Statements Required in Certificate or Opinion......................62
SECTION 13.6 Separability Clause................................................62
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar.......................62
SECTION 13.8 Legal Holidays.....................................................62
SECTION 13.9 Governing Law......................................................63
SECTION 13.10 No Recourse Against Others.........................................63
SECTION 13.11 Successors.........................................................63
SECTION 13.12 Effect of Headings and Table of Contents...........................63
SECTION 13.13 Benefits of Indenture..............................................63
SECTION 13.14 Multiple Originals.................................................63
ARTICLE XIV
GUARANTEES.........................................................................................64
SECTION 14.1 Guarantee .......................................................64
</TABLE>
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<PAGE> 9
INDENTURE, dated as of ____________, by and among AIMCO Properties,
L.P., a Delaware limited partnership (the "Company"), Apartment Investment and
Management Company, a Maryland corporation (the "Guarantor"), and United States
Trust Company of New York, a New York corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
For value received, the execution and delivery by the Guarantor of this
Indenture to provide for the issuance of the Guarantee provided for herein (if
made applicable in accordance with Section 2.3) has been duly authorized. All
things necessary to make this Indenture a valid agreement of the Guarantor, in
accordance with its terms, have been done.
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 ratable benefit of the Holders of the Securities or each series
thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions
"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 or cause the direction of 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.
"Board of Directors" means either the board of directors of the General
Partner of the Company or any committee of such board authorized with respect to
any matter to exercise the powers of the Board of Directors of the General
Partner of the Company.
<PAGE> 10
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"cash" means such coin or currency of the United States as at any time
of payment is legal tender for the payment of public and private debts.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by the Chairman of the Board, any Vice
Chairman, the President or any Vice President of its General Partner, and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
its General Partner, and delivered to the Trustee or, with respect to Sections
2.4, 2.8, 2.11 and 7.2, any other employee of its General Partner named in an
Officers' Certificate delivered to the Trustee.
"Debt" means with respect to any person at any date, without
duplication (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person, (iv) all
obligations of such person pursuant to leases which are required to be
capitalized under generally accepted accounting principles consistently applied
and (v) all Debt of others for the payment of which such person is responsible
or liable as obligor or guarantor.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a)
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<PAGE> 11
as the Depositary with respect to such series of Securities, until a successor
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include such successor.
"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 6.2.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"General Partner" means the general partner of AIMCO Properties, L.P.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article XII.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 14(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively, a
written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"Holder" or "Securityholder," when used with respect to any Security,
means a person in whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
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<PAGE> 12
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the Principal of such Security or an installment of Principal or, in the
case of a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the General Partner of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President or any
Vice President of its General Partner, and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of its General Partner, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, its
General Partner, the Trustee, or the Guarantor, as the case may be.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on the Securities of that series are
payable as specified as contemplated by Section 2.3(a).
"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;
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<PAGE> 13
and, for the purposes of this definition, any Security authenticated and
delivered under Section 2.9 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal" or "Principal Amount" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "redemption price," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securityholder" or "Holder," when used with respect to any Security,
means a person in whose name a Security is registered on the Registrar's books.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
2.13.
"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 as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest thereon is due
and payable.
"Subsidiary" means, with respect to any person, a corporation of which
a majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries of such person or
(iii) one or more Subsidiaries of such person.
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<PAGE> 14
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"United States" means the United States of America, its territories,
its possessions (including the Commonwealth of Puerto Rico), and other areas
subject to its jurisdiction.
SECTION 1.2 Other Definitions
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Date" 2.11
"Guaranteed Securities" 2.3
"Legal Holiday" 13.8
"Notice of Default " 6.1
"Outstanding" 2.10
"Paying Agent" 2.5
"Registrar" 2.5
"Senior Indebtedness" 12.1
</TABLE>
SECTION 1.3 Incorporation by Reference of Trust Indenture Act Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
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<PAGE> 15
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 Rules of Construction Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally The Securities of each series shall be in
substantially such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities as evidenced by their
execution of the Securities. The Officers' Certificate so establishing the form
of Security of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.4 for the authentication
and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such
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<PAGE> 16
Securities may be listed, all as determined by the Officers executing such
Securities as evidenced by their execution of such Securities.
SECTION 2.2 Securities in Global Form If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), 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
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount of
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 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in 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 2.4 or 2.11 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 13.4 or 13.5 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 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 13.4 or 13.5 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 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless
otherwise specified as contemplated by Section 2.3(a), payment of Principal of
and any interest on any Security in global form shall be made to the person or
persons specified therein.
SECTION 2.3 Title, Terms and Denominations
(a) The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an
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<PAGE> 17
Officers' Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the
Securities of the series which 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 Sections 2.8, 2.9, 2.11, 3.6, 9.5
or 10.3 and except for any Securities which, pursuant to Section 2.4,
are deemed never to have been authenticated and delivered hereunder);
(3) whether any Securities of the series may be represented
initially by a Security in temporary or permanent global form and, if
so, the initial Depositary with respect to any such temporary or
permanent global Security, and if other than as provided in Section 2.8
or Section 2.11, as applicable, whether and the circumstances under
which beneficial owners of interests in any such temporary or permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination;
(4) the person to whom any interest on any 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, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities
of the series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 4.5, the Principal of and any interest on Securities of the
series shall be payable, any Securities of the series may be
surrendered for registration of transfer, Securities
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of the series may be surrendered for exchange and notices and demands
to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, the
conditions, if any, giving rise to such obligation, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, and any provisions for the remarketing
of such Securities;
(10) the denominations in which any Securities of the series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) if other than the Principal Amount thereof, the portion
of the Principal Amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.2;
(12) if other than as defined in Section 1.1, the meaning of
"Business Day" when used with respect to any Securities of the series;
(13) the terms and conditions, if any, upon which the
Securities of the series may or must be converted into securities of
the Company or exchanged for securities of the Company;
(14) any terms applicable to Original Issue Discount (as that
term is defined in the Internal Revenue Code of 1986 and the
Regulations thereunder), if any, including the rate or rates at which
such Original Issue Discount, if any, shall accrue;
(15) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
Principal of or any interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
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(16) if the Guarantor has guaranteed the obligations of the
Company with respect to the Securities of the series (any such
guaranteed securities being "Guaranteed Securities"); and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.1(7)).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided in or pursuant to an Officers' Certificate pursuant to
this Section 2.3(a) or in any 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 for issuances of additional Securities of
such series or for the establishment of additional terms with respect to the
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of any appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the General
Partner of the Company and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of the series. With respect
to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officers' Certificate may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Execution, Authentication, Delivery and Dating The
Securities shall be executed on behalf of the Company by the Chairman of the
Board, any Vice Chairman, the President or any Vice President of its General
Partner, or the Treasurer or any Assistant Treasurer of its General Partner,
under its corporate seal reproduced thereon attested by the Secretary or any
Assistant Secretary of its General Partner. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the General Partner of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such
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offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series 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 such Company Order shall authenticate and deliver such Securities;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if
any, and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 2.1 and 2.3(a), in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form and terms of such Securities have been duly
authorized by the Company and established in conformity with the provisions of
this Indenture; and
(b) that such Securities when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
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<PAGE> 21
(x) that the forms of such Securities have been, and the terms
of such Securities (when established in accordance with such procedures
as may be specified from time to time in a Company Order, all as
contemplated by and in accordance with a Board Resolution or an
Officers' Certificate pursuant to Section 2.3(a), as the case may be)
will have been, duly authorized by the Company and established in
conformity with the provisions of this Indenture; and
(y) that such Securities when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and (3) issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary
exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding
three paragraphs, if all Securities of a series are subject to a Periodic
Offering, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 2.3(a) at or prior to the time of
authentication of each Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication
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<PAGE> 22
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. The Trustee's certificate
of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
United States Trust Company of New York, as
Trustee
By:
---------------------------------------------
Authorized Signatory
Notwithstanding the foregoing, if any Security shall have been duly
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 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 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 2.5 Registrar and Paying Agent The Company or the Guarantor (if
the Securities are Guaranteed Securities) shall maintain, with respect to each
series of Securities, an office or agency where such Securities may be presented
for registration of transfer or for exchange ("Registrar") and, in the Borough
of Manhattan, The City of New York, an office or agency where such Securities
may be presented for purchase or payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company or the Guarantor, as the case may be, may have one or more co-registrars
and one or more additional paying agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with
respect to each series of Securities with any Registrar, Paying Agent or
co-registrar (if not the Trustee). The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company or the
Guarantor (if the Securities are Guaranteed Securities) fails
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to maintain a Registrar or Paying Agent for a particular series of Securities,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or the Guarantor, as the case may
be, or any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust Except
as otherwise provided herein, prior to or on each due date of payments in
respect of any series of Securities, the Company or the Guarantor (if the
Securities are Guaranteed Securities) shall deposit with the Paying Agent with
respect to such Securities a sum of money sufficient to make such payments when
so becoming due. The Company or the Guarantor, as the case may be, shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by such Paying Agent for the making of payments in respect of the
Securities of such series and shall notify the Trustee of any default by the
Company or the Guarantor, as the case may be, in making any such payment. At any
time during the continuance of any such default, a Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money so held
in trust with respect to such Securities. If the Company or the Guarantor, as
the case may be, or a Subsidiary or an Affiliate of either of them acts as
Paying Agent for a series of Securities, it shall segregate the money held by it
as Paying Agent with respect to such Securities and hold it as a separate trust
fund. The Company or the Guarantor, as the case may be, at any time may require
a Paying Agent for a series of Securities to pay all money held by it with
respect to such Securities to the Trustee and to account for any money disbursed
by it. Upon doing so, such Paying Agent shall have no further liability for the
money.
SECTION 2.7 Securityholder Lists The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of each series of Securities. If the
Trustee is not the Registrar for any series of Securities, the Company or the
Guarantor (if the Securities are Guaranteed Securities) shall cause to be
furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Holders of such series of Securities dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of such series
of Securities.
SECTION 2.8 Transfer and Exchange Upon surrender for registration of
transfer of any Security at the office or agency of the Company or the Guarantor
(if the Securities are Guaranteed Securities) designated pursuant to Section 4.5
for such purpose, the Company and the Guarantor, as the case may be, shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or
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<PAGE> 24
more new Securities of any authorized denomination or denominations of a like
aggregate Principal Amount and tenor. The Company and the Guarantor, as the case
may be, shall not charge a service charge for any registration of transfer or
exchange, but the Company and the Guarantor, as the case may be, may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the
Securities from the Securityholder requesting such transfer or exchange (other
than any exchange of a temporary Security for a definitive Security not
involving any change in ownership or any exchange pursuant to Section 2.11, 3.6,
9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set
forth in the sixth and seventh paragraphs) of this Section, a Security in global
form representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denomination or
denominations, of a like aggregate Principal Amount and tenor, upon surrender of
the Securities to be exchanged at the office or agency of the Company or the
Guarantor (if the Securities are Guaranteed Securities) designated as such
pursuant to Section 4.5 for the purpose of exchanges of Securities of such
series. Whenever any Securities are so surrendered for exchange, the Company and
the Guarantor (if the Securities are Guaranteed Securities) shall execute, and
the Trustee or a duly appointed authenticating agent shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Securities of a series notifies
the Company or the Guarantor (if the Securities are Guaranteed Securities) that
it is unwilling or unable to continue as Depositary for the Securities of such
series, the Company or the Guarantor, as the case may be, shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company or the Guarantor, as the case may be, within 90 days after the Company
or the Guarantor, as the case may be, receives such notice, the Company or the
Guarantor, as the case may be, will execute, and the Trustee, upon receipt of a
Company Order or Guarantor Order, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate Principal Amount
equal to the Principal Amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
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<PAGE> 25
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company or the Guarantor, as the case may be, will execute, and the
Trustee, upon receipt of a Company Order or Guarantor Order, as the case may be,
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to
exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall deliver to the Trustee definitive Securities in aggregate
Principal Amount equal to the Principal Amount of such permanent global
Security, executed by the Company or the Guarantor, as the case may be,. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Depositary with respect
thereto to the Trustee, as the Company's (or the Guarantor's, as the case may
be), 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 permanent 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
permanent global Security to be exchanged; provided, however, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date. If a 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 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.
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Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
Securities issued in exchange for a Security in global form pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor (if
such Securities are Guaranteed Securities), 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 Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Guarantor or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Guarantor, as the case may be, and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Security so selected for redemption, in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 2.9 Replacement Securities If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company, the Guarantor (if the Securities are Guaranteed Securities) or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company and the Guarantor (if the Securities are Guaranteed Securities) shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
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<PAGE> 27
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company or the Guarantor (if
the Securities are Guaranteed Securities) in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Securities under this Section, the Company
or the Guarantor (if the Securities are Guaranteed Securities) 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 issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and the Guarantor (if
the Securities are Guaranteed Securities), whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and any such new
Security shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of that issue 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.
SECTION 2.10 Outstanding Securities; Determinations of Holders' Action
Securities of any series "Outstanding" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "Outstanding" because the Company or the
Guarantor (if the Securities are Guaranteed Securities) or an Affiliate thereof
holds the Security; provided, however, that in determining whether the Holders
of the requisite Principal Amount of Outstanding Securities have given or
concurred in any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or the Guarantor, as the case
may be, or any other obligor upon the Securities or any Affiliate of the Company
or the Guarantor, as the case may be, or such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected 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 the
Guarantor, as the case may be, or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor, as the case may be, or of such other
obligor. Subject to the foregoing, only Securities outstanding
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<PAGE> 28
at the time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles VI and IX).
In addition, in determining whether the Holders of the requisite Principal
Amount of Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, the Principal
Amount of a Discount Security that shall be deemed to be Outstanding shall be
the amount of the Principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.2.
If a Security has been paid pursuant to Section 2.9 or in exchange for
or in lieu of which another Security has been authenticated and delivered
pursuant to this Indenture, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the Trustee (other than the Company or the Guarantor (if the
Securities are Guaranteed Securities)) holds, in accordance with this Indenture,
on a Redemption Date or on Stated Maturity, money sufficient to pay Securities
payable on that date, then on and after that date such Securities shall cease to
be outstanding and interest, if any, on such Securities shall cease to accrue;
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.
SECTION 2.11 Temporary Securities Pending the preparation of definitive
Securities of any series, the Company or the Guarantor (if the Securities are
Guaranteed Securities) may execute, and upon Company Order or Guarantor Order,
as the case may be, 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, 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. Such temporary
Securities may be in global form.
If temporary Securities for some or all of the Securities of any series
are issued, the Company or the Guarantor (if the Securities are Guaranteed
Securities) will cause definitive Securities representing such Securities to be
prepared without unreasonable delay. After the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company or the Guarantor, as the case may be, designated
as such pursuant to Section 4.5 for the purpose of exchanges of Securities of
such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company or the Guarantor,
as the case may be, shall execute and the Trustee shall authenticate and deliver
in exchange therefor a
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like Principal Amount of definitive Securities of the same series and of like
tenor of authorized denominations. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
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 permanent Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 2.12 Cancellation All Securities surrendered for payment,
redemption, 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 all Securities so delivered shall be
promptly cancelled by it. The Company or the Guarantor (if the Securities are
Guaranteed Securities) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor, as the case may be, may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company or the Guarantor, as the case may be, may not reissue, or issue new
Securities to replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted in the form of Securities for any particular series or as permitted by
this Indenture. All cancelled Securities held by the Trustee shall be destroyed
by the Trustee and evidence of their destruction delivered to the Company or the
Guarantor, as the case may be, unless the Company or the Guarantor, as the case
may be, directs by Company Order or Guarantor Order, as the case may be, that
the Trustee deliver cancelled Securities to the Company or the Guarantor, as
the case may be.
SECTION 2.13 Payment of Interest; Interest Rights Preserved Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Security which 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.
Any interest on any Security of any series which 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 Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor (if the
Securities are Guaranteed Securities), at its election in each case, as provided
in clause (1) or (2) below:
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(1) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may elect to make payment of any Defaulted Interest to the
persons in whose names the 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 or the Guarantor, as
the case may be, shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, and at the same time the Company or the Guarantor,
as the case may be, shall deposit with the Trustee an amount of money
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 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 or the Guarantor, as the case
may be, of such Special Record Date and, in the name and at the expense of
the Company or the Guarantor, as the case may be, 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
Securities at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
persons in whose names the Securities (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).
(2) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may make payment of any Defaulted Interest on the Securities
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 or the Guarantor, as the case may be, 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 2.8,
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 2.14 Persons Deemed Owners Prior to due presentment of a
Security for registration of transfer, the Company, the Guarantor (if the
Securities are Guaranteed
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Securities), the Trustee and any agent of the Company, the Guarantor (if the
Securities are Guaranteed Securities) or the Trustee may treat the person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of Principal of and (except as otherwise specified
as contemplated by Section 2.3(a) and subject to Section 2.8 and Section 2.13)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Guarantor (if the
Securities are Guaranteed Securities), the Trustee nor any agent of the Company,
the Guarantor (if the Securities are Guaranteed Securities) or the Trustee shall
be affected by notice to the contrary.
None of the Company, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee, any Paying Agent or the 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.
SECTION 2.15 Computation of Interest Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on
any Securities which bear interest at a fixed rate shall be computed on the
basis of a 360-day year comprised of twelve 30-day months and (ii) interest on
any Securities which bear interest at a variable rate shall be computed on the
basis of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 Right to Redeem; Notices to Trustee 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount and any other information necessary to identify the Securities of such
series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 Selection of Securities to be Redeemed Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to
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be redeemed, the Trustee shall select the particular Securities to be redeemed
by a method the Trustee considers fair and appropriate, which method 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 make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 Notice of Redemption Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption
Price; and
(6) that the redemption is for a sinking fund, if such is the case.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Company Notice shall be prepared
by the Company.
SECTION 3.4 Effect of Notice of Redemption Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the
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Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 2.3(a), installments of interest on
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 Sections 2.8 and
2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 Deposit of Redemption Price Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 Securities Redeemed in Part Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company designated therefor pursuant to Section 4.5 (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, upon such surrender,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Security or Securities of the same series and of
like tenor, in an authorized denomination, as requested by such Holder, equal in
aggregate Principal Amount to, and in exchange for, the unredeemed portion of
the Principal of the Security surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities The Company or the Guarantor (if the
Securities are Guaranteed Securities) shall promptly make all payments in
respect of each series of Securities on the dates and in the manner provided in
the Securities and, to the extent not otherwise so provided, pursuant to this
Indenture. An installment of Principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or a Paying Agent (other
than the Company or the Guarantor, as the case may be, or an Affiliate of the
Company or the Guarantor, as the case may be) holds on that date funds
designated for and sufficient to pay such installment. At the Company's or the
Guarantor's (if the Securities are Guaranteed Securities) option, payments of
Principal or interest may be made by check or by transfer to an account
maintained by the payee.
SECTION 4.2 SEC Reports The Company or the Guarantor (if the Securities
are Guaranteed Securities) shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company or the Guarantor, as the
case may be, also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.3 Compliance Certificate The Company and the Guarantor (if
the Securities are Guaranteed Securities) shall each deliver to the Trustee
within 120 days after the end of each of their respective fiscal year (beginning
with the first fiscal year ending on or after the date hereof), an Officers'
Certificate and Guarantor's Officers' Certificate, as the case may be, stating
whether or not the signers know of any Default that occurred during such period.
If they do, such Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, shall describe the Default and its status.
SECTION 4.4 Further Instruments and Acts Upon request of the Trustee,
the Company and the Guarantor (if the Securities are Guaranteed Securities) will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 4.5 Maintenance of Office or Agency The Company or the
Guarantor (if the Securities are Guaranteed Securities) will maintain in the
Borough of Manhattan, the City of New York, an office or agency where Securities
of that series may be presented or surrendered for payment, where any
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange,
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purchase or redemption and where notices and demands to or upon the Company or
the Guarantor, as the case may be, in respect of the Securities of that series
and this Indenture may be served. The office of the Trustee in New York, New
York shall be such office or agency for all of the aforesaid purposes unless the
Company or the Guarantor, as the case may be, shall maintain some other office
or agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change in the location, of such other office or agency.
If at any time the Company or the Guarantor, as the case may be, shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, and the Company or the Guarantor, as the case may be,
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may also 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 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 or the Guarantor, as the case may be, 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 or
the Guarantor, as the case may be, 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.
SECTION 4.6 Limitations on the Incurrence of Certain Other Debt The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either pari passu with the Securities or
subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge or Transfer Assets The Company and
the Guarantor (if the Securities are Guaranteed Securities) shall not
consolidate with or merge with or into any other person or convey, transfer or
lease its properties and assets substantially as an entirety to any person,
unless:
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(a) either (1) the Company or the Guarantor, as the case may be,
shall be the continuing entity or (2) the person (if other than the
Company or the Guarantor, as the case may be) formed by such
consolidation or into which the Company or the Guarantor, as the case
may be, is merged or the person which acquires by conveyance, transfer or
lease the properties and assets of the Company or the Guarantor, as the
case may be, substantially as an entirety (i) shall be a corporation,
partnership or trust organized and validity existing under the laws of
the United States or any state thereof or the District of Columbia and
(ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company or the Guarantor, as the
case may be, under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate or, if applicable, the Guarantor shall have delivered to the
Trustee a Guarantor's Officers' Certificate, and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein relating to such transaction
have been satisfied.
The successor person formed by such consolidation or into which the
Company or the Guarantor, as the case may be, is merged or the successor person
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or the
Guarantor, as the case may be, under this Indenture, with the same effect as if
such successor had been named as the Company or the Guarantor, as the case may
be, herein; and thereafter, except in the case of a lease of its properties and
assets substantially as an entirety, the Company or the Guarantor, as the case
may be, shall be discharged from all obligations and covenants under this
Indenture and the Securities.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of securities, an
"Event of Default" occurs, with respect to each series of the Securities
individually, if:
(1) the Company or the Guarantor (if the Securities are Guaranteed
Securities) defaults in (a) the payment of the principal of any Security
of such series at its Maturity or (b) the payment of any interest upon
any Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company or the Guarantor (if the Securities are Guaranteed
Securities) fails to comply with any of its agreements in the Securities
or this Indenture (other than those referred to in clause (1) above and
other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of
another series of Securities) and such failure continues for 60 days
after receipt by the Company or the Guarantor, as the case may be, of a
Notice of Default;
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or the Guarantor, as the case may be, in an involuntary case or
proceeding under any applicable Bankruptcy Law or (b) a decree or order
adjudging the Company or the Guarantor, as the case may be, bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor, as the case
may be, under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or the Guarantor, as the case may
be, or of any substantial part of its property, or ordering the wind up
or liquidation of its affairs, and any such decree or order for relief
shall continue to be in effect, or any such other decree or order shall
be unstayed and in effect, for a period of 60 consecutive days;
(4) (a) the Company or the Guarantor (if the Securities are
Guaranteed Securities) commences a voluntary case or proceeding under
any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (b) the Company or the Guarantor, as
the case may be, consents to the entry of a decree or order for relief in
respect of the Company or the Guarantor, as the case may be, in an
involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding
against it, (c) the
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Company or the Guarantor, as the case may be, files a petition or answer
or consent seeking reorganization or substantially comparable relief
under any applicable federal or state law, (d) the Company or the
Guarantor, as the case may be, (x) consents to the filing of such
petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or the Guarantor, as the case may be, or of any
substantial part of its property, (y) makes an assignment for the benefit
of creditors or (z) admits in writing its inability to pay its debts
generally as they become due or (e) the Company or the Guarantor, as the
case may be, takes any action in furtherance of any such actions in this
clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of such series notify the Company, the Guarantor, as the
case may be, and the Trustee, of the Default and the Company or the Guarantor,
as the case may be, does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.2 Acceleration If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series by notice to the Company, the Guarantor,
as the case may be, and the Trustee, may declare the Principal Amount (or, if
any of the Securities of that series are Discount Securities, such portion of
the Principal Amount of such Securities as may be specified in the terms
thereof) of all the Securities of that series to be immediately due and payable.
Upon such a declaration, such Principal (or portion thereof) shall be due and
payable immediately. If an Event of Default specified in Section 6.1(3) or (4)
occurs and is continuing, the Principal (or portion thereof) of all the
Securities of that series shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of any series, by notice to the Trustee (and without
notice to any other Securityholder) may rescind an acceleration with respect to
that series and its consequences if the rescission would not conflict with any
judgment or decree and all
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existing Events of Default with respect to Securities of such series have been
cured or waived except nonpayment of the Principal (or portion thereof) of
Securities of such series that has become due solely as a result of such
acceleration and if all amounts due to the Trustee under Section 7.7 have been
paid. No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.3 Other Remedies If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series waive an existing
Default with respect to such series and its consequences except (1) an Event of
Default described in Section 6.1(1) with respect to such series or (2) a Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.5 Control by Majority The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits A Holder of any Security of any series
may not pursue any remedy with respect to this Indenture or the Securities
unless:
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(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 Rights of Holders to Receive Payment Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security to receive payment of the Principal
of and (subject to Section 2.13) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected adversely without the consent of each
such Holder.
SECTION 6.8 Collection Suit by Trustee If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or the Guarantor, as the case may be, for
the whole amount owing with respect to such series of Securities and the amounts
provided for in Section 7.7.
SECTION 6.9 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, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon the Securities or the property of the Company, the Guarantor,
as the case may be, or of such other obligor or their creditors, the Trustee
(irrespective of whether the Principal of the Securities 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 or the Guarantor,
as the case may be, for the payment of overdue Principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section
7.7) and of the Holders of Securities allowed in such judicial
proceeding, and
(b) 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
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities 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
of Securities, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Senior Indebtedness to authorize or consent to or accept or adopt
on behalf of any Holder of a Security any plan of reorganization, arrangement,
adjustment or composition affecting the Securities 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 in any such proceeding.
SECTION 6.10 Priorities If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities, 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 Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided for in Article
XII;
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities 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 amounts due and payable on such Securities for Principal
and interest, respectively; and
FOURTH: the balance, if any, to the Company.
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The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs 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, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in aggregate Principal Amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the Principal of or interest on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 6.12 Waiver of Stay, Extension or Usury Laws The Company and
the Guarantor (if the Securities are Guaranteed Securities), in each case,
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 stay or extension law or any usury or other 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 and the
Guarantor, as the case may be, (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.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and shall not be liable except
for the performance of such duties; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) 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 not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 Rights of Trustee (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
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(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.3 Individual Rights of Trustee, etc The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates or with the Guarantor
(if the Securities are Guaranteed Securities) or its Affiliates, with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar or any other agent of the Company or the Guarantor, as the case may
be, may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities. The Trustee
shall not be accountable for the Company's or the Guarantor's (if the
Securities are Guaranteed Securities) use of the proceeds from the Securities
and shall not be responsible for any statement in the registration statement for
the Securities under the Securities Act of 1933, as amended, or in the Indenture
or the Securities (other than its certificate of authentication) or for the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.5 Notice of Defaults If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. The Trustee shall have no duty to inquire as to the
performance of the Company's or the Guarantor's (if the Securities are
Guaranteed Securities) covenants in Article IV hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default except
(i) any Event of Default occurring pursuant to Section 4.1 or 6.1(l), or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.6 Reports by Trustee to Holders Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of
Securities shall be filed with the SEC and each stock exchange on which the
Securities of that series may be listed. The Company and the Guarantor (if the
Securities are Guaranteed Securities) agrees to notify the Trustee whenever the
Securities of a particular series become listed on any stock exchange and of any
delisting thereof.
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SECTION 7.7 Compensation and Indemnity The Company and the Guarantor
(if the Securities are Guaranteed Securities) each agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the 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, advances 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
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, 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.
To secure the Company's and the Guarantor's (if the Securities are
Guaranteed Securities) payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the Principal of or
interest, if any, on particular Securities.
The Company's and the Guarantor's (if the Securities are Guaranteed
Securities) payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee The Trustee may resign by so
notifying the Company and the Guarantor (if the Securities are Guaranteed
Securities); provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.8. The
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company and the Guarantor (if the Securities
are Guaranteed Securities) shall remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
series, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall promptly appoint, by resolution of their respective boards of
directors, as applicable, a successor Trustee 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 series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company and
the Guarantor (if the Securities are Guaranteed Securities). Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
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
Guarantor (if the Securities are Guaranteed Securities), 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 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
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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 as 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, the Guarantor (if the Securities are Guaranteed
Securities) 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, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of such series at the time outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of any series fails to
comply with Section 7.10, any Holder of a Security of such series may petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
SECTION 7.9 Successor Trustee by Merger If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
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SECTION 7.11 Preferential Collection of Claims Against Company The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Discharge of Liability on Securities Except as otherwise
provided as contemplated by Section 2.3(a), when (a) the Company or the
Guarantor (if the Securities are Guaranteed Securities) delivers to the Trustee
for cancellation all Outstanding Securities or all Outstanding Securities of
any series, as the case may be, theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company or the Guarantor, as the case may be, and thereafter repaid
to the Company or the Guarantor, as the case may be, or discharged from such
trust, as provided in Section 2.6), or (b) all Outstanding Securities or all
Outstanding Securities of any series have become due and payable and the Company
or the Guarantor, as the case may be, deposits with the Trustee cash sufficient
to pay at Stated Maturity the Principal Amount of all Principal of and interest
on such Outstanding Securities (other than Securities replaced pursuant to
Section 2.9), and if in either case the Company or the Guarantor, as the case
may be, pays all other sums payable hereunder by the Company or the Guarantor,
as the case may be, then this Indenture shall, subject to Section 7.7, cease to
be of further effect as to such Outstanding Securities. The Trustee shall join
in the execution of a document prepared by the Company or the Guarantor, as the
case may be, acknowledging satisfaction and discharge of this Indenture on
demand of the Company or the Guarantor, as the case may be, accompanied by an
Officers' Certificate or Guarantor's Officers' Certificate, respectively, and
Opinion of Counsel and at the cost and expense of the Company or the Guarantor,
as the case may be.
SECTION 8.2 Repayment to the Company The Trustee and the Paying Agent
shall return to the Company or the Guarantor (if the Securities are Guaranteed
Securities) on Company Request or Guarantor Request, as the case may be, any
money held by them for the payment of any amount with respect to the Securities
that remains unclaimed for two years; provided, however, that the Trustee or
such Paying Agent, before being required to make any such return, may at the
expense and direction of the Company or the Guarantor, as the case may be, mail
to each Holder of such Securities 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 mailing, any unclaimed money then remaining will be returned to
the Company or the Guarantor, as the case may be. After return to the Company or
the Guarantor, as the case may be, Holders entitled to the money must look to
the Company or the Guarantor, as the case may be, for payment as general
creditors unless an applicable abandoned property law designates another
person.
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SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.4 Defeasance and Discharge Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.4, the Company and the
Guarantor (if the Securities are Guaranteed Securities) each shall be deemed to
have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company and the
Guarantor, as the case may be, shall be deemed to have paid and discharged the
entire indebtedness represented by the defeased Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Sections 2.4,
2.5, 2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8 and 8.2 of this
Indenture and to have satisfied all its other obligations under such series of
Securities and this Indenture insofar as such series of Securities are concerned
(and the Trustee, at the expense of the Company and, upon written request, shall
execute proper instruments acknowledging the same). Subject to compliance with
this Article VIII, the Company may exercise its option under this Section 8.4
notwithstanding the prior exercise of its option under Section 8.5 with respect
to a series of Securities.
SECTION 8.5 Covenant Defeasance Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.5, the Company and the
Guarantor, as the case may be, shall be released from its obligations under
Sections 4.2 and 4.3 and Article V and such other provisions as may be provided
as contemplated by Section 2.3(a) with respect to Securities of a particular
series and with respect to the Defeased Securities on and after the date the
conditions set forth below are satisfied (hereinafter "covenant defeasance"),
and the Defeased Securities 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 if any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company and the Guarantor, as the case may be, 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 Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provisions herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1 but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
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SECTION 8.6 Condition to Defeasance or Covenant Defeasance The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company or the Guarantor (if the Securities are Guaranteed
Securities) shall have irrevocably deposited with the Trustee, in trust, (i)
sufficient funds to pay the Principal of and interest to Stated Maturity (or
redemption) on, the Securities of such series, or (ii) such amount of direct
obligations of, or obligations the principal of and interest on which are fully
guaranteed by, the government of the United States, and which are not subject to
prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the Principal of, and interest to Stated
Maturity (or redemption) on, the Securities of such series.
(b) The Company shall have delivered to the Trustee an opinion of
counsel to the effect that the funds deposited pursuant to Section 8.6(a) will
not be subject to any rights of the holders of Senior Indebtedness.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders Without
the consent of any Holders of Securities, the Company, the Guarantor (if the
Securities are Guaranteed Securities) 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 corporation to the Company
or the Guarantor, as the case may be, and the assumption by any such
successor of the covenants of the Company or the Guarantor, as the case
may be, herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company or the Guarantor, as the case may be, for the benefit of the
Holders of all of the Securities or any series thereof, or to surrender
any right or power herein conferred upon the Company or the Guarantor, as
the case may be; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3(a), respectively; or
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(4) 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, pursuant
to the requirements of Section 7.8; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(7) to secure the Securities; or
(8) to make any other change that does not adversely affect the
rights of any Securityholder.
SECTION 9.2 Supplemental Indentures with Consent of Holders With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee may amend this Indenture or the
Securities of any series or 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 the Securities of such
series under this Indenture; provided, however, that no such amendment or
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 any
installment of Principal of or interest on, any such Security, or reduce
the Principal Amount thereof or the rate of interest thereon or any
premium payable upon redemption thereof or reduce the amount of Principal
of any such Discount Security that would be due and payable upon a
declaration of acceleration of maturity thereof pursuant to Section 6.2,
or change the Place of Payment, or change the coin or currency in which
any Principal of, or any installment of interest on, any such Security 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, on or after the Redemption Date);
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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 amendment or supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences
with respect to the Securities of such series provided for in this
Indenture;
(3) make any change in the terms of the Subordination of the
Securities in a manner adverse to the Holders of any series of
outstanding Securities; or
(4) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such
series required for such actions 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.
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.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplemental indenture, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplemental indenture under this Section 9.2
becomes effective, the Company and the Guarantor (if the Securities are
Guaranteed Securities) shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 Compliance with Trust Indenture Act Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 Revocation and Effect of Consents, Waivers and Actions
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation
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before the Company or the Guarantor (if the Securities are Guaranteed
Securities) or an agent of the Company or the Guarantor, as the case may be,
certifies to the Trustee that the consent of the requisite aggregate Principal
Amount of the Securities of that series has been obtained. After an amendment,
waiver or action becomes effective, it shall bind every Holder of Securities of
that series.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 Notation on or Exchange of Securities Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series 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 and the
Guarantor (if the Securities are Guaranteed Securities) shall so determine, new
Securities of such series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and the Guarantor, as the case may be, and
authenticated and delivered by the Trustee in exchange for outstanding
Securities of that series.
SECTION 9.6 Trustee to Sign Supplemental Indentures The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 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 shall be bound thereby, except
to the extent otherwise set forth thereon.
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ARTICLE X
SINKING FUNDS
SECTION 10.1 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 2.3(a) 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 Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 10.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), and (2) may apply as a credit Securities of a series with the same
issue date, interest rate and Stated Maturity which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case, in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of such series
with the same issue date, interest rate and Stated Maturity; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 10.3 Redemption of Securities for Sinking Fund Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 10.2 and will also deliver to the
Trustee any Securities to be so delivered. 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
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.4 and 3.6.
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ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 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 11.2 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 11.1, to be held at such time and at such place in the
Borough of Manhattan, the City of New York or, with the approval of the Company
or the Guarantor (if the Securities are Guaranteed Securities), at any other
place. 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 13.2, 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, the Guarantor (if the Securities
are Guaranteed Securities) 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 11.1, 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, the Guarantor (if the Securities
are Guaranteed Securities) 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 such other place as
shall be determined and approved by the Company or the Guarantor, as the case
may be, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 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, any representatives of the Company and its counsel, and any
representatives of the Guarantor (if the Securities are Guaranteed Securities)
and its counsel.
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SECTION 11.4 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. In the absence of
a quorum within 30 minutes of 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 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 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 11.2(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 an 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 9.2, 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 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in Principal Amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in Principal Amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 11.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings (a) Notwithstanding any other 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
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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 11.7 and the appointment of any proxy shall be proved in the manner
specified in Section 11.7. 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 11.7 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, the Guarantor (if the Securities are Guaranteed Securities) or by
Holders of Securities as provided in Section 11.2 (b), in which case the
Company, the Guarantor (if the Securities are Guaranteed Securities) 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 vote with respect to 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 11.2 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 11.6 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 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 facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
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provided in Section 11.2 and, if applicable, Section 11.4. 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 the
Guarantor (if the Securities are Guaranteed Securities), 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 11.7 Actions of Holders Generally (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. 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 or the Guarantor (if the Securities
are Guaranteed Securities). 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 (subject to
Section 7.1) conclusive in favor of the Trustee and the Company and the
Guarantor (if the Securities are Guaranteed Securities), 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 11.6.
(b) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Securities held by the
person, and the date of holding the same, shall be proved by the books of the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other act of the Holder of any Security in accordance with this
Section 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 or the Company or the Guarantor (if the Securities are
Guaranteed Securities) in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other act in accordance with this Section,
the Company or the Guarantor, as the case may be, may, at its option, by or
pursuant to an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, delivered to the Trustee, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or such other act, but the
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Company or the Guarantor, as the case may be, shall have no obligation to do so.
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 percentage of Outstanding Securities or Outstanding
Securities of a series, as the case may be, 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 or
Outstanding Securities of the series, as the case may be, shall be computed as
of such record date; provided, that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless such request,
demand, authorization, direction, notice, consent, waiver or other act shall
become effective pursuant to the provisions of clause (a) of this Section 11.7
not later than six months after the record date.
ARTICLE XII
SUBORDINATION
SECTION 12.1 Securities Subordinate to Senior Indebtedness Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XII. The
Company and the Guarantor, as applicable, each covenants and agrees, and each
Holder of a Security of any series by such Holder's acceptance thereof likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article XII, the indebtedness represented by the Securities and
the payment of the Principal Amount, interest and such other amounts as provided
for in Section 2.3(a), if any, in respect of each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding)
and other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding,
it is expressly provided that such Debt of the Company shall be
subordinated to any other Debt of the Company, unless such Debt of the
Company expressly provides that such Debt of the Company shall be senior
in right of payment to the Securities;
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(b) any Debt of the Company which by its terms states that such Debt of
the Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities; and
(d) any Debt of the Company to any Affiliate of the Company or Subsidiary
of the Company.
SECTION 12.2 Payment Over of Proceeds upon Dissolution, Etc. Upon any
distribution of assets of the Company or the Guarantor (if the Securities are
Guaranteed Securities) in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or the
Guarantor, as the case may be, or to their respective creditors, as such,
or to their respective assets, or
(b) any liquidation, dissolution or other winding up of the Company
or the Guarantor (if the Securities are Guaranteed Securities), whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company or the Guarantor (if
the Securities are Guaranteed Securities), then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any
payment on account of the Principal Amount, interest or such other
amounts as may be provided for in Section 2.3(a), if any, in respect of
the Securities; and
(2) any payment or distribution of assets of the Company or the
Guarantor (if the Securities are Guaranteed Securities) of any kind or
character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company or the Guarantor (if the Securities are
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Guaranteed Securities) being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 12.2, the Trustee or the Holder of any Security shall receive any
payment or distribution of assets of the Company or the Guarantor (if the
Securities are Guaranteed Securities) of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
or the Guarantor (if the Securities are Guaranteed Securities) being
subordinated to the payment of the Securities, before all Senior Indebtedness is
paid in full or payment thereof provided for, and if such fact shall then have
been made known to the Trustee as provided in Section 12.10, or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of the Company or the Guarantor (if the Securities are
Guaranteed Securities) for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
For purposes of this Article XII only, the words "cash, property or
securities," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company or the Guarantor (if the Securities are
Guaranteed Securities) as reorganized or readjusted, or securities of the
Company or the Guarantor (if the Securities are Guaranteed Securities) or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinated, at least to the extent provided in this
Article XII with respect to the Securities, to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however, that (i)
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
the Senior Indebtedness are not, without the consent of such holders, altered,
in any manner adverse to such holders, by such reorganization or readjustment.
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The consolidation of the Company or the Guarantor (if the Securities
are Guaranteed Securities) with, or the merger of the Company or the Guarantor
(if the Securities are Guaranteed Securities) into, another corporation or the
liquidation or dissolution of the Company or the Guarantor (if the Securities
are Guaranteed Securities) following the conveyance or transfer of all or
substantially all of its assets to another person upon the terms and conditions
set forth in Article V shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or the Guarantor (if the
Securities are Guaranteed Securities) for the purposes of this Section 12.2 if
the corporation formed by such consolidation or into which the Company or the
Guarantor (if the Securities are Guaranteed Securities) is merged or the person
which acquires by conveyance or transfer all or substantially all of the assets
of the Company or the Guarantor (if the Securities are Guaranteed Securities),
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 12.3 Acceleration of Securities In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.2, then and in each such event the Company and the Guarantor (if the
Securities are Guaranteed Securities) shall promptly notify holders of Senior
Indebtedness of such acceleration. The Company or the Guarantor, as the case may
be, may not pay the Securities until 120 days have passed after such
acceleration occurs and may thereafter pay the Securities if this Article XII
permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company and the
Guarantor (if the Securities are Guaranteed Securities) shall make any payment
to the Trustee or the Holder of any Securities prohibited by the foregoing
provisions of this Section 12.3, and if such facts then shall have been known or
thereafter shall have been made known to the Trustee (as provided in Section
12.10) or to such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in each such event such payment shall be paid over and
delivered forthwith to the Company or the Guarantor, as the case may be, for the
benefit of the holders of Senior Indebtedness by or on behalf of the person
holding such payment.
The provisions of this Section 12.3 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 Default in Senior Indebtedness The Company and the
Guarantor (if the Securities are Guaranteed Securities) may not make any payment
of the Principal Amount, interest or other such amounts as may be provided for
in Section 2.3(a), if any, in respect of the Securities and may not acquire any
Securities for cash or property (other than for Capital Stock of the Company)
if:
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(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity;
and
(2) the default is the subject of judicial proceedings or the Company
or the Guarantor, as the case may be, receives a notice of default
thereof from any person who may give such notice pursuant to the
instrument evidencing or document governing such Senior Indebtedness. If
the Company or the Guarantor, as the case may be, receives any such
notice, then a similar notice received within nine months thereafter
relating to the same default on the same issue of Senior Indebtedness
shall not be effective for purposes of this Section 12.4.
The Company or the Guarantor, as the case may be, may resume payments
on the Securities and may acquire Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company or the
Guarantor (if the Securities are Guaranteed Securities) of the notice
described in clause (2) above and the default is not then the subject of
judicial proceedings; and this Article XII otherwise permits the payment
or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor, as the case may be, shall make any payment to the Trustee or the
Holder of any Security prohibited by the foregoing provisions of this Section
12.4, and if such fact then shall have been known or thereafter shall have been
made known to the Trustee as provided in Section 12.10 or such Holder, as the
case may be, pursuant to the terms of this Indenture, then and in each such
event such payment shall be paid over and delivered forthwith to the Company or
the Guarantor, as the case may be, for the benefit of the holders of the Senior
Indebtedness by or on behalf of the person holding such payment.
The provisions of this Section 12.4 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted if No Default Nothing contained in this
Article XII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company or the Guarantor (if the Securities are Guaranteed
Securities), at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company or the
Guarantor, as the case may be, referred to in Section 12.2 or under the
conditions described in Section 12.3 or 12.4, from making payments at any time
of the Principal Amount, interest or such other amounts as may be provided for
in Section 2.3(a), if any, as the case may be, in respect of the Securities, or
(b) the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the
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payment of or on account of the Principal Amount, interest or such other amounts
as may be provided for in Section 2.3(a), if any, as the case may be, in respect
of the Securities if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 12.10, notice that such payment would
have been prohibited by the provisions of this Article XII.
SECTION 12.6 Subrogation Rights of Holders of Senior Indebtedness
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XII to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities applicable to
the Senior Indebtedness until the Principal Amount, interest or such other
amounts as provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XII, and no payments pursuant to the provisions of this Article XII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company or the Guarantor (if the
Securities are Guaranteed Securities) to or on account of the Senior
Indebtedness.
SECTION 12.7 Provision Solely to Define Relative Rights The provisions
of this Article XII are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall:
(a) impair, as among the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Holders of the Securities, the obligation of the
Company and the Guarantor, as the case may be, which is absolute and
unconditional, to pay to the Holders of the Securities the Principal Amount,
interest or such other amounts as may be provided for in Section 2.3(a), if any,
as the case may be, in respect of the Securities as and when the same shall
become due and payable in accordance with the terms of the Securities and this
Indenture and which, subject to the rights under this Article XII of the holders
of Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company and the Guarantor (if the Securities are Guaranteed
Securities); or
(b) affect the relative rights against the Company or the Guarantor
(if the Securities are Guaranteed Securities) of the Holders of the
Securities and creditors of the Company or the Guarantor (if the
Securities are Guaranteed Securities) other than holders of Senior
Indebtedness; or
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(c) 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 XII of
the holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 12.8 Trustee to Effectuate Subordination Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 12.9 No Waiver of Subordination Provisions 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 Company or the Guarantor (if the
Securities are Guaranteed Securities) or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or the
Guarantor (if the Securities are Guaranteed Securities) with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement 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 dispose of any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any manner for the
collection of Senior Indebtedness and (iv) exercise or refrain from exercising
any rights against the Company or the Guarantor (if the Securities are
Guaranteed Securities) or any other person.
SECTION 12.10 Notice to Trustee The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article XII 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 to or by the Trustee in respect of the Securities, unless and until the
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Trustee shall have received written notice thereof at the address specified in
Section 13.2 from the Company or a holder 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 Section 7.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a Trust
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 money may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of any Security), the
notice with respect to such money provided for in this Section 12.10, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was 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.
Subject to the provisions of Section 7.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a person representing
himself to be a holder of Senior Indebtedness (or a trustee or agent 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 XII, 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 XII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent Upon any payment or distribution of assets of the Company or the Guarantor
(if the Securities are Guaranteed Securities) referred to in this Article XII,
the Trustee, subject to the provisions of Section 7.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company or the Guarantor (if
the Securities are Guaranteed Securities), the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XII.
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SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Indebtedness
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 13.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 12.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
SECTION 12.14 Article XII Applicable to Paying Agents The term
"Trustee" as used in this Article XII shall (unless the context otherwise
requires) be construed as extending to and including the Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article XII in addition to or in place of the Trustee; provided,
however, that Sections 12.10 and 12.12 shall not apply to the Company or the
Guarantor (if the Securities are Guaranteed Securities) or any Affiliate of the
Company or the Guarantor (if the Securities are Guaranteed Securities) if it or
such Affiliate acts as Paying Agent.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 Notices Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
AIMCO Properties, L.P.
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attention: [ ]
if to the Guarantor:
Apartment Investment and Management Company
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attention: [ ]
if to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
Attention: Corporate Trust Department
The Company, the Guarantor (if the Securities are Guaranteed
Securities) or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Securities shall be
mailed to such Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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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.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company or the Guarantor (if the Securities are Guaranteed
Securities) mails a notice or communication to the Holders of Securities of a
particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided herein.
SECTION 13.3 Communication by Holders with Other Holders
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee, the Registrar or the Paying Agent with respect to a
particular series of Securities, and anyone else, shall have the protection of
TIA Section 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent Upon
any request or application by the Company or the Guarantor (if the Securities
are Guaranteed Securities) to the Trustee to take any action under this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee:
(1) an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 13.5 Statements Required in Certificate or Opinion Each
Officers' Certificate, Guarantor's Officers' Certificate (if the Securities are
Guaranteed Securities) or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate,
Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Guarantor's Officers' Certificate (if the
Securities are Guaranteed Securities) or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 Separability Clause In case any provision in this
Indenture or in the Securities 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 13.7 Rules by Trustee, Paying Agent and Registrar With respect
to the Securities of a particular series, the Trustee with respect to such
series of Securities may make reasonable rules for action by or a meeting of
Holders of such series of Securities. With respect to the Securities of a
particular series, the Registrar and the Paying Agent with respect to such
series of Securities may make reasonable rules for their functions.
SECTION 13.8 Legal Holidays A "Legal Holiday" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
Principal need not be made at such Place of Payment, or such other action need
not be taken, on such date, but the action shall be taken on the next succeeding
day that is not a Legal Holiday at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or such other date and to the extent applicable no Original
Issue Discount or interest, if any, shall accrue for the intervening period.
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SECTION 13.9 Governing Law THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 No Recourse Against Others A director, officer, employee
or stockholder, as such, of the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall not have any liability for any obligations of the
Company or the Guarantor, as the case may be, under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder of such
Security shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 13.11 Successors All agreements of the Company or the Guarantor
(if the Securities are Guaranteed Securities) in this Indenture and the
Securities shall bind its respective successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 13.12 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 13.13 Benefits of Indenture Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
SECTION 13.14 Multiple Originals The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
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ARTICLE XIV
GUARANTEES
SECTION 14.1 Guarantee The Guarantee set forth in this Article XIV
shall only be in effect with respect to Securities of a series to the extent
such Guarantee is made applicable to such series in accordance with Section 2.3.
The Guarantor hereby unconditionally guarantees to each Holder of a Guaranteed
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest on such Guaranteed Security and
the due and punctual payment of the sinking fund payments (if any) provided for
pursuant to the terms of such Guaranteed Security, when and as the same shall
become due and payable, whether at maturity, by acceleration, redemption,
repayment or otherwise, in accordance with the terms of such Security and of
this Indenture. In case of the failure of the Company punctually to pay any such
principal, premium, interest or sinking fund payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at maturity, upon acceleration,
redemption, repayment or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Company or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium or interest on, and sinking
fund payment required with respect to, the Guaranteed Securities and the
complete performance of all other obligations contained in the Guaranteed
Securities.
This Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time payment on any Guaranteed Security, in whole or in
part, is restricted or must otherwise be restored to the Company or the
Guarantor upon the bankruptcy, liquidation or reorganization of the Company or
otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Company in respect of any amounts paid to such
Holder by the
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<PAGE> 73
Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
any premium and interest on, and sinking fund payments required with respect to,
all Guaranteed Securities shall have been paid in full.
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<PAGE> 74
AIMCO PROPERTIES, L.P.
AIMCO-GP, INC.
its General Partner
By:
----------------------------------
Name:
Title:
Attest:
- --------------------------------------------
Name:
Title:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, as Guarantor, if applicable
By:
----------------------------------
Name:
Title:
Attest:
- --------------------------------------------
Name:
Title:
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<PAGE> 75
UNITED STATES TRUST COMPANY OF NEW
YORK,
as Trustee
By:
----------------------------------
Name:
Title:
Attest:
- --------------------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 5.1
[PIPER & MARBURY L.L.P. LETTERHEAD]
November 25, 1998
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
1873 South Bellaire Street, Suite 1700
Denver, Colorado 80222
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as Maryland counsel to Apartment Investment and Management
Company, a Maryland corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), pursuant
to a Registration Statement on Form S-3 of the Company (Registration No.
333-61409) (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") on August 13, 1998, amended on October 16, 1998,
and November 25, 1998, including the prospectus included therein at the time the
Registration Statement is declared effective (the "Prospectus"), for offering by
the Company from time to time of up to $1,000,000,000 aggregate initial offering
price of its (i) senior, senior subordinated, or subordinated debt securities
(the "Debt Securities") consisting of debentures, notes, and/or other unsecured
evidences of indebtedness, (ii) shares of Preferred Stock, par value $.01 per
share (the "Preferred Stock"), (iii) shares of Class A Common Stock, par value
$.01 per share (the "Class A Common Stock"), and (iv) warrants to purchase Debt
Securities (the "Debt Securities Warrants"), Preferred Stock (the "Preferred
Stock Warrants"), or Class A Common Stock (the "Class A Common Stock Warrants"),
as designated by the Company at the time of the offering (collectively, the
"Warrants"). The Prospectus includes an additional $268,168,000 in Debt
Securities, Preferred Stock, Class A Common Stock, and Warrants which have been
registered in a prior Registration Statement of the Company (Registration No.
333-26415). The Company may guarantee (the "Guarantees"), which Guarantees will
be full and unconditional, up to $500,000,000 aggregate principal amount of debt
securities consisting of debentures, notes, and/or other unsecured evidences of
indebtedness of AIMCO Properties, L.P., a Delaware limited partnership and
subsidiary of the Company (the "OP Partnership Debt Securities"). The Debt
Securities, the Preferred Stock, the Class A Common Stock, the
<PAGE> 2
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
November 25, 1998
Page 2
Warrants, and the Guarantees are sometimes collectively referred to as the
"Securities." The Registration Statement provides that the Securities may be
offered separately or together, in separate series, in amounts, at prices, and
on terms to be set forth in one or more supplements to the Prospectus (each a
"Prospectus Supplement"). This opinion is being provided at your request in
connection with the filing of the Registration Statement.
In our capacity as special Maryland counsel, we have reviewed the
following documents:
(a) The Registration Statement and the Preliminary Prospectus
dated November 25, 1998 (the "Preliminary Prospectus") relating to the
issuance of the Securities, which forms part of the Registration
Statement;
(b) The Charter, certified by the Department of Assessments and
Taxation of the State of Maryland (the "MSDAT"), and By-Laws, as amended
and restated and in effect on the date hereof, of the Company;
(c) Certified resolutions of the Board of Directors of the Company
relating to the authorization of the filing of the Registration Statement
and to the Securities;
(d) A short-form good standing certificate for the Company, dated
a recent date, issued by the MSDAT;
(e) A Certificate of Secretary (the "Certificate") of the Company,
dated the date hereof, as to certain factual matters; and
(f) Such other documents as we have considered necessary to the
rendering of the opinions expressed below.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, and the conformity
with originals of all documents submitted to us as copies (and the authenticity
of the originals of such copies), and the accuracy and completeness of all
public records reviewed by us. In making our examination of documents executed
by parties other than the Company (and for purposes of the documents referred to
below to be executed by parties other than the Company), we have assumed that
such parties had the power, corporate or other, to enter into and perform all
obligations thereunder, and we have also assumed the due authorization by all
<PAGE> 3
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
November 25, 1998
Page 3
requisite action, corporate or other, and the valid execution and delivery by
such parties of such documents and the validity, binding effect, and
enforceability thereof with respect to such parties. As to any facts material
to this opinion which we did not independently establish or verify, we have
relied solely upon the Certificate.
We further assume that:
(a) The issuance, sale, amount, and terms of the Securities to be
offered from time to time by the Company will be authorized and determined
by proper action of the Board of Directors (or where permitted, a committee
of the Board of Directors) of the Company (each, a "Board Action") in
accordance with the Company's Charter and By-Laws and applicable law, in
each case so as not to result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or
regulatory body having jurisdiction over the Company.
(b) The issuance, sale, amount, and terms of the Debt Securities
(including Debt Securities that are the subject of Debt Securities
Warrants) to be offered from time to time by the Company will be authorized
and determined by proper Board Action in accordance with the Company's
Charter and By-Laws and applicable law, in each case so as not to result in
a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental or regulatory body having jurisdiction over the
Company.
(c) Any Debt Securities will be issued under a valid and legally
binding indenture (an "Indenture") that conforms to the description thereof
set forth in the Prospectus Supplement and will comply with the Company's
Charter and By-Laws and applicable law.
(d) To the extent that the obligations of the Company under any Debt
Securities or related Indenture may be dependent upon such matters, the
financial institution to be identified in such Indenture as Trustee (the
"Trustee") will be duly organized, validly existing, and in good standing
under the laws of its jurisdiction of organization; the Trustee will be
duly qualified to engage in the activities contemplated by such Indenture;
such Indenture will have been duly authorized, executed, and delivered by
the Trustee and will constitute the legally valid and binding obligation of
the
<PAGE> 4
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
November 25, 1998
Page 4
Trustee enforceable against the Trustee in accordance with its terms; the
Trustee will be in compliance, generally, with respect to acting as Trustee
under such Indenture, with applicable laws and regulations; and the Trustee
will have the requisite organizational and legal power and authority to
perform its obligations under such Indenture.
(e) Appropriate debentures, notes, and/or other evidences of
indebtedness evidencing the Debt Securities will be executed and
authenticated in accordance with the Indenture, will be delivered upon the
issuance and sale of the Debt Securities, and will comply with the
Indenture, the Company's Charter and By-Laws, and applicable law.
(f) Prior to the issuance of any shares of the Class A Common Stock or
the Preferred Stock (including the Class A Common Stock that is the
subject of any of the Class A Common Stock Warrants or Preferred Stock that
is the subject of any of the Preferred Stock Warrants), there will exist,
under the Charter of the Company, the requisite number of authorized but
unissued shares of the Class A Common Stock or the Preferred Stock (and
securities of any class into which any of the Preferred Stock may be
convertible), as the case may be, and that all actions necessary to the
creation of any such Preferred Stock (and securities of any class into
which any Preferred Stock may be convertible), whether by Charter amendment
or by classification or reclassification of existing capital stock and the
filing of Articles Supplementary, will have been taken.
(g) Appropriate certificates representing shares of the Class A Common
Stock or the Preferred Stock will be executed and delivered upon issuance
and sale of any shares of the Class A Common Stock or the Preferred Stock,
as the case may be, and will comply with the Company's Charter and By-Laws
and applicable law.
(h) Any Warrants will be issued under a valid and legally binding
warrant agreement (a "Warrant Agreement") that conforms to the description
thereof set forth in the Prospectus Supplement, and will comply with the
Company's Charter and By-Laws and applicable law.
(i) To the extent that the obligations of the Company under any
Warrant Agreement may be dependent upon such matters, the financial
institution to be identified in such Warrant Agreement as warrant agent
<PAGE> 5
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
November 25, 1998
Page 5
(the "Warrant Agent") will be duly organized, validly existing, and in good
standing under the laws of its jurisdiction of organization; the Warrant
Agent will be duly qualified to engage in the activities contemplated by
such Warrant Agreement; such Warrant Agreement will have been duly
authorized, executed, and delivered by the Warrant Agent and will
constitute the legally valid and binding obligation of the Warrant Agent
enforceable against the Warrant Agent in accordance with its terms; the
Warrant Agent will be in compliance, generally, with respect to acting as
Warrant Agent under such Warrant Agreement, with applicable laws and
regulations; and the Warrant Agent will have the requisite organizational
and legal power and authority to perform its obligations under such Warrant
Agreement.
(j) Any Guarantees will be evidenced by a valid and legally binding
agreement or other instrument, which may be the Indenture, (each, a
"Guaranty Agreement") that conforms to the description thereof set forth in
the Prospectus Supplement, will be executed and delivered prior to or upon
the issuance and sale of the Guarantees and the related OP Partnership Debt
Securities, and will comply with the Charter and By-Laws of the Company and
applicable law.
(k) The underwriting agreements for offerings of the Securities (each,
an "Underwriting Agreement," and collectively, the "Underwriting
Agreements") will be valid and legally binding contracts that conform to
the description thereof set forth in the applicable Prospectus Supplement.
Based upon the foregoing and having regard for such legal consideration as
we deem relevant, we are of the opinion and advise you that:
1. When a series of the Debt Securities has been duly authorized and
established in accordance with the applicable Board Action, the terms of
the Indenture, the Company's Charter and By-laws, and applicable law, and,
upon execution, issuance, and delivery of the Debt Securities against
payment therefor in accordance with the terms and provisions of such Board
Action, the Indenture, the Registration Statement (as declared effective
under the Act), the Prospectus or the applicable Prospectus Supplement,
and, if applicable, an Underwriting Agreement, or upon issuance and
delivery of the Debt Securities pursuant to the exercise of one or more
Debt Securities Warrants or the exchange of one or more series of the
Preferred Stock exchangeable into the Debt Securities, the
<PAGE> 6
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
November 25, 1998
Page 6
Debt Securities will constitute valid and legally binding obligations of the
Company.
2. Upon due authorization by Board Action of an issuance of Class A Common
Stock, and upon issuance and delivery of certificates for shares of such Class A
Common Stock against payment therefor in accordance with the terms and
provisions of such Board Action, the Registration Statement (as declared
effective under the Act), the Prospectus or the applicable Prospectus Supplement
and, if applicable, an Underwriting Agreement, or upon issuance and delivery of
certificates for shares of the Class A Common Stock pursuant to the exercise of
one or more Class A Common Stock Warrants or the conversion of one or more
series of the Preferred Stock convertible into the Class A Common Stock, the
shares of the Class A Common Stock represented by such certificates will be duly
authorized, validly issued, fully paid, and non-assessable.
3. When a series of the Preferred Stock (and securities of any class into
which any of the Preferred Stock may be convertible) has been duly authorized
and established in accordance with the applicable Board Action, the terms of the
Company's Charter and By-Laws, and applicable law, and, upon issuance and
delivery of certificates for shares of such series of the Preferred Stock
against payment therefor in accordance with the terms and provisions of such
Board Action, the Registration Statement (as declared effective under the Act),
the Prospectus or the applicable Prospectus Supplement, and, if applicable, an
Underwriting Agreement, or upon issuance and delivery of certificates for shares
of the Preferred Stock pursuant to the exercise of one or more Preferred Stock
Warrants or the conversion of one or more series of the Preferred Stock
convertible into the Preferred Stock, the shares of the Preferred Stock
represented by such certificates will be duly authorized, validly issued, fully
paid, and non-assessable.
4. When the Warrants have been duly authorized and established in
accordance with the applicable Board Action, the terms of the Company's Charter
and By-Laws, and applicable law, and, upon execution, issuance, and delivery of
the Warrants against payment therefor in accordance with the terms and
provisions of such Board Action, the Warrant Agreement, the Registration
Statement (as declared effective under the Act), the Prospectus or the
applicable Prospectus Supplement,
<PAGE> 7
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
November 25, 1998
Page 7
and, if applicable, an Underwriting Agreement, the Warrants will constitute
valid and legally binding obligations of the Company.
5. When a series of the OP Partnership Debt Securities has been duly
authorized and established, when the related Guarantees have been duly
authorized and established in accordance with the applicable Board Action,
the terms of the Company's Charter and By-Laws, and applicable law, and,
upon execution, issuance, and delivery of the Guaranty Agreement against
payment therefor in accordance with the terms and provisions of such Board
Action, the Guaranty Agreement, the Registration Statement (as declared
effective under the Act), the Prospectus or the applicable Prospectus
Supplement, and, if applicable, an Underwriting Agreement, the Guarantees
will constitute valid and legally binding obligations of the Company.
The opinion stated herein relating to the validity and binding nature of
obligations of the Company is subject to (i) the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium, or similar laws affecting
creditors' rights generally and (ii) the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
This opinion is limited to the laws of the State of Maryland, exclusive of
the securities or "blue sky" laws of the State of Maryland. The foregoing
opinion is rendered as of the date hereof. We assume no obligation to update
such opinion to reflect any facts or circumstances which may hereafter come to
our attention or changes in the law which may hereafter occur. To the extent
that any documents referred to herein are governed by the law of a jurisdiction
other than Maryland, we have assumed that the laws of such jurisdiction are the
same as the laws of the State of Maryland.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement and to the reference to our firm
under the heading "Legal Matters" in the Registration Statement. We further
consent to the reliance on this opinion by Skadden, Arps, Slate, Meagher & Flom
LLP in rendering their opinion to the Company in connection with the filing
of the Registration Statement. This opinion is limited to the matters set forth
herein, and no other opinion should be inferred beyond the matters expressly
stated.
Very truly yours,
/s/ PIPER & MARBURY L.L.P.
<PAGE> 1
EXHIBIT 5.2
[SASM&F LLP LETTERHEAD]
November 25, 1998
AIMCO Properties, L.P.
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Re: Apartment Investment and Management Company
AIMCO Properties, L.P.
Registration Statement on Form S-3
Dear Ladies and Gentlemen:
We have acted as special counsel to AIMCO Properties, L.P., a Delaware
limited partnership (the "AIMCO Operating Partnership"), in connection with the
preparation of the Registration Statement on Form S-3 (File No. 333-61409),
initially filed by the AIMCO Operating Partnership and Apartment Investment and
Management Company, a Maryland corporation ("AIMCO"), with the Securities and
Exchange Commission (the "Commission") on August 13, 1998, under the Securities
Act of 1933, as amended (the "Securities Act") and Amendments No. 1 and No. 2
thereto, filed on October 19, 1998 and November 25, 1998, respectively (as so
amended, the "Registration Statement"). The Registration Statement relates to
the issuance and sale from time to time, pursuant to Rule 415 of the General
Rules and Regulations of the Commission promulgated under the Securities Act, of
the following securities of the AIMCO Operating Partnership with an aggregate
initial public offering price of up to $500,000,000: senior debt securities,
senior subordinated debt securities or subordinated debt securities, in one or
more series (the "Debt Securities"), which may be issued under Indentures (the
"Indentures") entered into or proposed to be entered into among the AIMCO
Operating Partnership, AIMCO (as guarantor, as applicable) and trustees (the
"Trustees") that have been or will be appointed prior to the issuance of Debt
Securities.
<PAGE> 2
AIMCO Properties, L.P.
November 25, 1998
Page 2
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
In connection with this opinion, we have examined originals or copies
(including facsimile transmissions), certified or otherwise identified to our
satisfaction, of (i) the Registration Statement, as amended through the date
hereof; (ii) the Indentures or forms thereof filed as exhibits to the
Registration Statement; (iii) the Third Amended and Restated Agreement of
Limited Partnership (the "Partnership Agreement") of the AIMCO Operating
Partnership, as presently in effect; (iv) the Certificate of Incorporation of
AIMCO-GP, Inc., a Delaware corporation and the general partner of the AIMCO
Operating Partnership (the "General Partner"), as presently in effect; (v) the
By-laws of the General Partner, as presently in effect; and (vi) certain
resolutions adopted to date by the Board of Directors of the General Partner
(the "Board Resolutions") relating to the issuance and sale, on a delayed or
continuous basis, of the Debt Securities and related matters, including a
delegation of authority to certain authorized officers of the General Partner to
fix and determine the terms of the Debt Securities. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such records of the AIMCO Operating Partnership and such agreements,
certificates or records of public officials, certificates of officers or other
representatives of the AIMCO Operating Partnership and others, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed or to be executed by parties other than the AIMCO Operating
Partnership, we have assumed that such parties had or will have the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and the
validity, enforceability and binding effect thereof. We have
<PAGE> 3
AIMCO Properties, L.P.
November 25, 1998
Page 3
assumed that the Indentures will be duly authorized, executed and delivered by
the Trustees and that any series of Debt Securities that may be issued (the
"Offered Debt Securities") will be manually signed by duly authorized officers
of the Trustees. In addition, we have assumed that the Indentures when executed
will be in substantially the forms reviewed by us. As to any facts material to
the opinions expressed herein which were not independently established or
verified, we have relied upon oral or written statements and representations of
officers and other representatives of the AIMCO Operating Partnership and
others.
In rendering the opinion set forth herein, we have further assumed that
the execution and delivery by the AIMCO Operating Partnership of the Indenture
and the Debt Securities and the performance of its obligations thereunder do not
and will not violate, conflict with or constitute a default under (i) any
agreement or instrument to which the AIMCO Operating Partnership or any of its
properties is subject, (ii) any law, rule, or regulation to which the AIMCO
Operating Partnership or any of its properties is subject, (iii) any judicial or
regulatory order or decree of any governmental authority, or (iv) any consent,
approval, license, authorization or validation of, or filing, recording or
registration with any governmental authority.
We do not express any opinion as to the laws of any jurisdiction other
than those of the State of Delaware and the State of New York.
Based upon and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the opinion that with respect to any
Offered Debt Securities, when (i) the Registration Statement becomes effective,
(ii) the authorized officers of the General Partner have taken all necessary
corporate action to fix and determine the terms of the Offered Debt Securities
in accordance with the Board Resolutions, (iii) the terms of the Offered Debt
Securities and of their issuance and sale have been duly established in
conformity with the applicable Indenture so as not to violate any applicable
law, the Partnership Agreement, the Certificate of Incorporation or By-laws of
the General Partner, or result in a default under or breach of any agreement or
instrument binding upon the AIMCO Operating Partnership or any of its
properties, and so as to comply with any requirement or
<PAGE> 4
AIMCO Properties, L.P.
November 25, 1998
Page 4
restriction imposed by any court or governmental body having jurisdiction over
the AIMCO Operating Partnership or any of its properties; (iv) the applicable
Indenture has been duly executed and delivered by the parties thereto; and (v)
the Offered Debt Securities have been duly executed and authenticated in
accordance with the terms of the applicable Indenture and duly delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor, the
issuance and sale of such Offered Debt Securities will have been duly
authorized, and such Offered Debt Securities will be valid and binding
obligations of the AIMCO Operating Partnership entitled to the benefits of the
applicable Indenture and enforceable against the AIMCO Operating Partnership in
accordance with their terms, except to the extent that (x) enforcement thereof
may be limited by (1) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally or (2) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity) and
(y) the waiver contained in Section 6.12 of the applicable Indenture may be
deemed unenforceable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Matters" in the prospectus which constitutes a
part of the Registration Statement. In giving this consent, we do not thereby
admit that we are included in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder. This opinion is expressed as of the date
hereof and we disclaim any undertaking to advise you of any subsequent changes
in the facts stated or assumed herein or of any subsequent changes in applicable
law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
<PAGE> 1
EXHIBIT 8.1
November 25, 1998
Apartment Investment and
Management Company
1873 South Bellaire Street
Suite 1700
Denver, Colorado 80222
Re: Certain Federal Income Tax Consequences
Ladies and Gentlemen:
We have acted as special counsel to Apartment Investment and Management
Company, a Maryland corporation ("AIMCO") in connection with the preparation of
the Registration Statement on Form S-3 (File No. 333-61409), initially filed by
AIMCO and AIMCO Properties, L.P., a Delaware limited partnership, with the
Securities and Exchange Commission (the "Commission") on August 13, 1998, under
the Securities Act of 1933, as amended (the "Registration Statement"). This
opinion is being delivered at your request in connection with the filing of the
Registration Statement. All capitalized terms used herein, unless otherwise
specified, shall have the meanings ascribed to them in the Registration
Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Registration
Statement and such other documentation and information provided by you as we
have deemed necessary or appropriate as a basis for the opinion set forth
herein. In addition, you have provided us with certain representations and
covenants of officers
<PAGE> 2
Apartment Investment and
Management Company
November 25, 1998
of AIMCO relating to, among other things, the actual and proposed operation of
AIMCO. For purposes of our opinion, we have not made an independent
investigation of the facts set forth in such representations, the partnership
agreements and organizational documents for each of the partnerships and
limited liability companies in which AIMCO holds a direct or indirect interest
(the "Subsidiaries"), the Registration Statement or any other document. We
have, consequently, assumed and relied on your representations that the
information presented in such documents or otherwise furnished to us accurately
and completely describes all material facts relevant to our opinion. No facts
have come to our attention, however, that would cause us to question the
accuracy and completeness of such facts or documents in a material way. We have
also relied upon the opinion of Piper & Marbury L.L.P. dated November 25, 1998
with respect to certain matters of Maryland law, the opinion of Shumaker, Loop
& Kendrick dated October 18, 1995 with respect to certain matters of Florida
law, and the opinion of Altheimer & Gray dated May 8, 1998 with respect to the
qualification as a real estate investment trust ("REIT") under the Internal
Revenue Code of 1986, as amended (the "Code") of Ambassador Apartments, Inc., a
Maryland corporation, for its taxable year ended December 31, 1994 and all
subsequent taxable years ending on or before May 8, 1998 (including the short
taxable year ending immediately prior to May 8, 1998). In addition, we have
assumed the qualification of Insignia Properties Trust as a REIT under the Code
and have relied upon the opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
dated October 1, 1998 in this regard.
In rendering our opinion, we have assumed that the transactions
contemplated by the foregoing documents have been or will be consummated in
accordance with the operative documents, and that such documents accurately
reflect the material facts of such transactions. In addition, our opinion is
based on the correctness of the following specific assumptions: (i) each of
AIMCO, the Subsidiaries, Property Asset Management Services, Inc., AIMCO/NHP
Holdings, Inc., AIMCO NHP Properties, Inc., NHP Management Company, NHP A&R
Services, Inc., and each "qualified REIT subsidiary" of AIMCO (within the
meaning of section 856(i)(2) of the Code), has been and will continue to be
operated in accordance with the laws of the jurisdiction in which it was formed
and in the manner described in the relevant organizational documents and in the
Registration Statement
2
<PAGE> 3
Apartment Investment and
Management Company
November 25, 1998
and (ii) there have been no changes in the applicable laws of the State of
Maryland or any other state under the laws of which any of the Subsidiaries
have been formed. In rendering our opinion, we have also considered and relied
upon the Code, the regulations promulgated thereunder (the "Regulations"),
administrative rulings and the other interpretations of the Code and the
Regulations by the courts and the Internal Revenue Service, all as they exist
as of the date hereof. With respect to the latter assumption, it should be
noted that the Code, Regulations, judicial decisions, and administrative
interpretations are subject to change at any time and, in some circumstances,
with retroactive effect. Any material change which is made after the date
hereof in any of the foregoing bases for our opinion could affect our
conclusions herein.
We express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States of America to the extent specifically
referred to herein.
Based on the foregoing, we are of the opinion that:
1. Commencing with AIMCO's initial taxable year ended December 31, 1994,
AIMCO was organized in conformity with the requirements for qualification as a
REIT under the Code, and its actual method of operation has enabled, and its
proposed method of operation will enable, AIMCO to meet the requirements for
qualification and taxation as a REIT. As noted in the Registration Statement,
AIMCO's qualification and taxation as a REIT depend upon its ability to meet,
through actual annual operating results, certain requirements, including
requirements relating to distribution levels and diversity of stock ownership,
and the various qualification tests imposed under the Code, the results of
which will not be reviewed by us. Accordingly, no assurance can be given that
the actual results of AIMCO's operation for any one taxable year will satisfy
the requirements for taxation as a REIT under the Code.
2. Although the discussion set forth in the Registration Statement under
the caption "Certain Federal Income Tax Consequences" does not purport to
discuss all possible United States Federal income tax consequences of the
purchase,
3
<PAGE> 4
Apartment Investment and
Management Company
November 25, 1998
ownership and disposition of the Securities, such discussion, although general
in nature, constitutes, in all material respects, a fair and accurate summary
under current law of certain material United States Federal income tax
consequences of the purchase, ownership and disposition of the Securities
discussed therein by a holder who purchases such Securities, subject to the
qualifications set forth therein. The United States Federal income tax
consequences of an investment in the Securities by an investor will depend upon
that holder's particular situation, and we express no opinion as to the
completeness of the discussion set forth in "Certain Federal Income Tax
Consequences" as applied to any particular holder.
Other than as expressly stated above, we express no opinion on any issue
relating to AIMCO, the Subsidiaries or to any investment therein. This opinion
is intended for the exclusive use of the person to whom it is addressed, except
as set forth herein, and it may not be used, circulated, quoted or relied upon
for any other purpose without our prior written consent. We consent to the
filing of this opinion as an exhibit to the Registration Statement and to the
references to Skadden, Arps, Slate, Meagher & Flom LLP under the caption
"Certain Federal Income Tax Consequences" in the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules or regulations of the Commission thereunder.
This opinion is expressed as of the date hereof, and we disclaim any
undertaking to advise you of any subsequent changes of the matters stated,
represented, covenanted, or assumed herein or any subsequent changes in
applicable law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
4
<PAGE> 1
EXHIBIT 12.1
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
<TABLE>
<CAPTION>
HISTORICAL
-----------------------------------------------------------------
Nine Months
Ended January 10,
September 30, Year Ended December 31, 1994 through
------------------ ---------------------------- December 31,
1998 1997 1997 1996 1995 1994
-------- ------- -------- ------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
Earnings (1) $ 51,203 $20,649 $ 29,535 $15,740 $14,988 $7,702
Fixed charges:
Interest expense 56,756 33,359 51,385 24,802 13,322 1,576
Capitalized interest 2,074 751 1,300 821 113 29
-------- ------- -------- ------- ------- ------
Total fixed charges (A) 58,830 34,110 52,685 25,623 13,435 1,605
-------- ------- -------- ------- ------- ------
Earnings before fixed
charges (2)(B) $107,959 $54,008 $ 80,920 $40,542 $28,310 $9,278
======== ======= ======== ======= ======= ======
Ratio of earnings to fixed
charges (B divided by A) 1.8:1.0 1.6:1.0 1.5:1.0 1.6:1.0 2.1:1.0 5.8:1.0
======== ======= ======== ======= ======= =======
</TABLE>
AIMCO PREDECESSORS
<TABLE>
<CAPTION>
HISTORICAL
----------------------------
January 1, Year ended
1994 through December 31,
July 28, 1994 1993
----------------------------
<S> <C> <C>
Historical:
Income (loss) before extraordinary item and income taxes $(1,463) $ 627
Fixed charges:
Interest expense 4,214 3,510
Capitalized interest -- --
------- ------
Total fixed charges (A) 4,214 3,510
------- ------
Earnings before fixed charges (1)(B) $ 2,751 $4,137
======= ======
Ratio of earnings to fixed charges (B divided by A) (3) 1.2:1.0
======= =======
</TABLE>
- ----------------
(1) Earnings represents pretax income before Minority Interest in Operating
Partnership and minority interest in other partnership. Equity in earnings
of unconsolidated subsidiaries and partnerships is included in earnings
only to the extent of dividends and distributions received.
(2) Earnings before fixed charges excludes capitalized interest.
(3) Earnings for the period January 1, 1994 through July 28, 1994 were
inadequate to cover fixed charges. The deficiency for the period was
$1,463.
<PAGE> 1
EXHIBIT 12.2
CALCULATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(DOLLARS IN THOUSANDS)
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
<TABLE>
<CAPTION>
HISTORICAL
------------------------------------------------------------------
Nine Months
Ended January 10,
September 30, Year Ended December 31, 1994 through
------------------ ---------------------------- December 31,
1998 1997 1997 1996 1995 1994
-------- ------- -------- ------- ------- ------
<S> <C> <C> <C> <C> <C> <C>
Earnings (1) $ 51,203 $20,649 $ 29,535 $15,740 $14,988 $7,702
Fixed charges:
Interest expense 56,756 33,359 51,385 24,802 13,322 1,576
Capitalized interest 2,074 751 1,300 821 113 29
Preferred stock dividends 16,320 846 2,315 -- 5,169 3,114
-------- ------- -------- ------- ------- ------
Total fixed charges (A) 75,150 34,956 55,000 25,623 18,604 4,719
-------- ------- -------- ------- ------- ------
Earnings before fixed
charges (2)(B) $107,959 $54,008 $ 80,920 $40,542 $28,310 $9,278
======== ======= ======== ======= ======= ======
Ratio of earnings to fixed
charges (B divided by A) 1.4:1.0 1.5:1.0 1.5:1.0 1.6:1.0 1.5:1.0 2.0:1.0
======= ======= ======= ======= ======= =======
</TABLE>
AIMCO PREDECESSORS
<TABLE>
<CAPTION>
HISTORICAL
----------------------------
January 1, Year ended
1994 through December 31,
July 28, 1994 1993
------------- ------------
<S> <C> <C>
Historical:
Income (loss) before extraordinary item and income taxes $(1,463) $ 627
Fixed charges:
Interest expense 4,214 3,510
Capitalized interest -- --
Preferred stock dividends (3) -- --
------- ------
Total fixed charges (A) 4,214 3,510
------- ------
Earnings before fixed charges (1)(B) $ 2,751 $4,137
======= ======
Ratio of earnings to fixed charges (B divided by A) (4) 1.2:1.0
======= =======
</TABLE>
- ----------------
(1) Earnings represents pretax income before Minority Interest in Operating
Partnership and minority interest in other partnership. Equity in earnings
of unconsolidated subsidiaries and partnerships is included in earnings
only to the extent of dividends and distributions received.
(2) Earnings before fixed charges excludes capitalized interest and preferred
stock dividends.
(3) The AIMCO Predecessors did not have any shares of Preferred Stock
outstanding during the period from January 1, 1992 through July 28, 1994.
(4) Earnings for the period January 1, 1994 through July 28, 1994 were
inadequate to cover fixed charges. The deficiency for the period was
$1,463.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement on Form S-3 and related Prospectus of
Apartment Investment and Management Company for the registration of Debt
Securities, Preferred Stock, Class A Common Stock, Warrants and Guarantees, and
of AIMCO properties, L.P. for the registration of Debt Securities, and to the
incorporation by reference therein of our reports (i) dated March 6, 1998,
except for Note 25, as to which the date is March 17, 1998, with respect to the
consolidated financial statements and schedule of Apartment Investment and
Management Company included in its Annual Report (Form 10-K/A) for the year
ended December 31, 1997; (ii) dated March 6, 1998, except for Note 21, as to
which the date is June 5, 1998, with respect to the consolidated financial
statements and schedule of AIMCO Properties, L.P. included in its Registration
Statement on Form 10; and (iii) dated June 26, 1998, with respect to the audit
of the Combined Historical Summary of Gross Income and Direct Operating Expenses
of the Cirque Apartment Communities included as exhibit 99.1 in Apartment
Investment and Management Company's Current Report on Form 8-K dated November 2,
1998 (and Amendment No. 1 thereto filed November 24, 1998) all filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
November 20, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement (Form S-3 No. 333-61409) and related
Prospectus of Apartment Investment and Management Company (AIMCO) for the
registration of Debt Securities, Preferred Stock, Class A Common Stock,
Warrants, and Guarantees, and of AIMCO Properties, L.P. for the registration of
Debt Securities and to the incorporation by reference therein of our report
dated January 30, 1998 (except for Note 19, as to which the date is March 5,
1998), with respect to the consolidated financial statements and schedule of
Ambassador Apartments, Inc. (Ambassador) as of December 31, 1997 and 1996, and
for each of the three years in the period ended December 31, 1997, included in
AIMCO's Current Report on Form 8-K dated March 17, 1998 (as amended on April 3,
1998), and our report dated January 27, 1997 (except for Note 15, as to which
the date is March 13, 1997 and Note 2(J), as to which the date is March 31,
1997), with respect to the consolidated financial statements and schedule of
Ambassador as of December 31, 1996 and 1995, and for each of the two years in
the period ended December 31, 1996 and the period from August 31, 1994 through
December 31, 1994, and the combined financial statements of Prime Properties
(Predecessor to Ambassador) for the period from January 1, 1994 through August
30, 1994, included in Amendment No. 1 filed on February 6, 1998 to AIMCO's
Current Report on Form 8-K dated December 23, 1997, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
November 20, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement (Form S-3 No. 333-61409) and related
Prospectus of Apartment Investment and Management Company for the registration
of Debt Securities, Preferred Stock, Class A Common Stock, Warrants, and
Guarantees and of AIMCO Properties, L.P. for the registration of Debt Securities
and to the incorporation by reference therein of our report dated February 13,
1998, except for Note 20, as to which the date is March 19, 1998, with respect
to the consolidated financial statements of Insignia Financial Group, Inc. as of
December 31, 1997 and 1996, and for each of the three years in the period ended
December 31, 1997 included as exhibit 99.2 in Apartment Investment and
Management Company's Current Report on Form 8-K dated March 17, 1998 (and
Amendment No. 1 thereto filed April 3, 1998), filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Greenville, South Carolina
November 20, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 2 to the Registration Statement on Form S-3 and related
Prospectus of Apartment Investment and Management Company for the registration
of Debt Securities, Preferred Stock, Class A Common Stock, Warrants and
Guarantees, and of AIMCO properties, L.P. for the registration of Debt
Securities, and to the incorporation by reference therein of our reports (i)
dated February 11, 1998, except for Note 1 as to which the date is October 16,
1998, with respect to the audit of the Combined Historical Summary of Gross
Income and Direct Operating Expenses of Realty Investment Apartment Communities
I included as Exhibit 99.2 in Apartment Investment and Management Company's
Current Report on Form 8-K dated November 2, 1998; and (ii) dated January 28,
1998, except for Note 1 as to which the date is July 24, 1998, with respect to
the audit of the Combined Historical Summary of Gross Income and Direct
Operating Expenses of Realty Investment Apartment Communities II included as
Exhibit 99.3 in Apartment Investment and Management Company's Current Report on
Form 8-K dated November 2, 1998, all filed with the Securities and Exchange
Commission.
/s/ BEERS & CUTLER PLLC
Washington, D.C.
November 20, 1998
<PAGE> 1
EXHIBIT 25.1
FORM T-1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal executive offices)
------------------
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
(Exact name of obligor as specified in its charter)
Maryland 84-1259577
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1873 South Bellaire Street, 17th Fl.
Denver, CO 80222
(Address of principal executive offices) (Zip Code)
----------------------
Senior Debt Securities
(Title of the indenture securities)
<PAGE> 2
- 2 -
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, DC
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
ITEMS 3., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
The Obligor is currently not in default under any of its outstanding
securities for which United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. LIST OF EXHIBITS
T-1.1 -- Organization Certificate, as amended, issued by the State of
New York Banking Department to transact business as a Trust
Company, is incorporated by reference to Exhibit T-1.1 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 -- Included in Exhibit T-1.1 of this Statement of Eligibility.
T-1.3 -- Included in Exhibit T-1.1 of this Statement of Eligibility.
<PAGE> 3
- 3 -
16. LIST OF EXHIBITS
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of November 23, 1998, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in ITEM 2., refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering ITEM 2. in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of November, 1998.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ John Guiliano
----------------------------
John Guiliano
Vice President
<PAGE> 4
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, NW
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/Gerard F. Ganey
--------------------------
Gerard F. Ganey
Senior Vice President
<PAGE> 5
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
September 30, 1998
($ IN THOUSANDS)
<TABLE>
<S> <C>
ASSETS
Cash and Due from Banks $ 339,287
Short-Term Investments 161,493
Securities, Available for Sale 563,176
Loans 1,954,456
Less: Allowance for Credit Losses 16,860
----------
Net Loans 1,937,596
Premises and Equipment 58,809
Other Assets 120,308
----------
TOTAL ASSETS $3,180,669
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 646,593
Interest Bearing 1,838,108
----------
Total Deposits 2,484,701
Short-Term Credit Facilities 375,849
Accounts Payable and Accrued Liabilities 142,513
----------
TOTAL LIABILITIES $3,003,063
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 109,648
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 3,422
----------
TOTAL STOCKHOLDER'S EQUITY 177,606
----------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $3,180,669
==========
</TABLE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
November 2, 1998
<PAGE> 1
EXHIBIT 25.2
FORM T-1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal executive offices)
------------------
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
(Exact name of obligor as specified in its charter)
Maryland 84-1259577
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1873 South Bellaire Street, 17th Fl.
Denver, CO 80222
(Address of principal executive offices) (Zip Code)
------------------
Senior Subordinated Debt Securities
(Title of the indenture securities)
<PAGE> 2
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, DC
New York State Banking Department, Albany, New York
(b)Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
ITEMS 3., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
The Obligor is currently not in default under any of its outstanding
securities for which United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. LIST OF EXHIBITS
T-1.1 -- Organization Certificate, as amended, issued by the
State of New York Banking Department to transact
business as a Trust Company, is incorporated by
reference to Exhibit T-1.1 to Form T-1 filed on
September 15, 1995 with the Commission pursuant to the
Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 -- Included in Exhibit T-1.1 of this Statement of
Eligibility.
T-1.3 -- Included in Exhibit T-1.1 of this Statement of
Eligibility.
<PAGE> 3
16. LIST OF EXHIBITS
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New York,
as amended, is incorporated by reference to Exhibit
T-1.4 to Form T-1 filed on September 15, 1995 with the
Commission pursuant to the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990
(Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b)
of the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising
or examining authority.
NOTE
As of November 23, 1998, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in ITEM 2., refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering ITEM 2. in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of November, 1998.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ John Guiliano
-----------------------
John Guiliano
Vice President
<PAGE> 4
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the
Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, NW
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/Gerard F. Ganey
---------------------
Gerard F. Ganey
Senior Vice President
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
September 30, 1998
($ IN THOUSANDS)
<S> <C>
ASSETS
Cash and Due from Banks $ 339,287
Short-Term Investments 161,493
Securities, Available for Sale 563,176
Loans 1,954,456
Less: Allowance for Credit Losses 16,860
----------
Net Loans 1,937,596
Premises and Equipment 58,809
Other Assets 120,308
----------
TOTAL ASSETS $3,180,669
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 646,593
Interest Bearing 1,838,108
----------
Total Deposits 2,484,701
Short-Term Credit Facilities 375,849
Accounts Payable and Accrued Liabilities 142,513
----------
TOTAL LIABILITIES $3,003,063
==========
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 109,648
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 3,422
----------
TOTAL STOCKHOLDER'S EQUITY 177,606
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $3,180,669
==========
</TABLE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
November 2, 1998
<PAGE> 1
EXHIBIT 25.3
FORM T-1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal executive offices)
------------------
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
(Exact name of obligor as specified in its charter)
Maryland 84-1259577
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1873 South Bellaire Street, 17th Fl.
Denver, CO 80222
(Address of principal executive offices) (Zip Code)
------------------
Subordinated Debt Securities
(Title of the indenture securities)
<PAGE> 2
- 2 -
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, DC
New York State Banking Department, Albany, New York
(b)Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
ITEMS 3., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
The Obligor is currently not in default under any of its outstanding
securities for which United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. LIST OF EXHIBITS
T-1.1 -- Organization Certificate, as amended, issued by
the State of New York Banking Department to transact
business as a Trust Company, is incorporated by
reference to Exhibit T-1.1 to Form T-1 filed on
September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 -- Included in Exhibit T-1.1 of this Statement of
Eligibility.
T-1.3 -- Included in Exhibit T-1.1 of this Statement of
Eligibility.
<PAGE> 3
- 3 -
16. LIST OF EXHIBITS
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New
York, as amended, is incorporated by reference to
Exhibit T-1.4 to Form T-1 filed on September 15, 1995
with the Commission pursuant to the Trust Indenture
Act of 1939, as amended by the Trust Indenture Reform
Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section
321(b) of the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the
trustee pursuant to law or the requirements of its
supervising or examining authority.
NOTE
As of November 23, 1998, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in ITEM 2., refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering ITEM 2. in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of November, 1998.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ John Guiliano
--------------------------
John Guiliano
Vice President
<PAGE> 4
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, NW
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/ Gerard F. Ganey
------------------------
By: Gerard F. Ganey
Senior Vice President
<PAGE> 5
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
September 30, 1998
------------------
($ IN THOUSANDS)
<TABLE>
<CAPTION>
ASSETS
- ------
<S> <C>
Cash and Due from Banks $ 339,287
Short-Term Investments 161,493
Securities, Available for Sale 563,176
Loans 1,954,456
Less: Allowance for Credit Losses 16,860
----------
Net Loans 1,937,596
Premises and Equipment 58,809
Other Assets 120,308
----------
TOTAL ASSETS $3,180,669
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 646,593
Interest Bearing 1,838,108
----------
Total Deposits 2,484,701
Short-Term Credit Facilities 375,849
Accounts Payable and Accrued Liabilities 142,513
----------
TOTAL LIABILITIES $3,003,063
==========
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 109,648
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 3,422
----------
TOTAL STOCKHOLDER'S EQUITY 177,606
----------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $3,180,669
==========
</TABLE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
November 2, 1998
<PAGE> 1
EXHIBIT 25.4
FORM T-1
==============================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal executive offices)
------------------
AIMCO PROPERTIES, L.P.
(Exact name of obligor as specified in its charter)
Delaware 84-1275621
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1873 South Bellaire Street, 17th Fl.
Denver, CO 80222
(Address of principal executive offices) (Zip Code)
------------------
Senior Debt Securities
(Title of the indenture securities)
<PAGE> 2
- 2 -
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, DC
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
ITEMS 3., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
The Obligor is currently not in default under any of its outstanding
securities for which United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. LIST OF EXHIBITS
T-1.1 -- Organization Certificate, as amended, issued by the State of
New York Banking Department to transact business as a Trust
Company, is incorporated by reference to Exhibit T-1.1 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 -- Included in Exhibit T-1.1 of this Statement of Eligibility.
T-1.3 -- Included in Exhibit T-1.1 of this Statement of Eligibility.
<PAGE> 3
- 3 -
16. LIST OF EXHIBITS
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of November 23, 1998, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in ITEM 2., refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering ITEM 2. in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of November, 1998.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ John Guiliano
-----------------
John Guiliano
Vice President
<PAGE> 4
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, NW
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/Gerard F. Ganey
------------------
By: Gerard F. Ganey
Senior Vice President
<PAGE> 5
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
<TABLE>
<CAPTION>
September 30, 1998
------------------
($ IN THOUSANDS)
<S> <C>
ASSETS
Cash and Due from Banks $ 339,287
Short-Term Investments 161,493
Securities, Available for Sale 563,176
Loans 1,954,456
Less: Allowance for Credit Losses 16,860
----------
Net Loans 1,937,596
Premises and Equipment 58,809
Other Assets 120,308
----------
TOTAL ASSETS $3,180,669
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 646,593
Interest Bearing 1,838,108
----------
Total Deposits 2,484,701
Short-Term Credit Facilities 375,849
Accounts Payable and Accrued Liabilities 142,513
----------
TOTAL LIABILITIES $3,003,063
==========
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 109,648
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 3,422
----------
TOTAL STOCKHOLDER'S EQUITY 177,606
----------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $3,180,669
==========
</TABLE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
November 2, 1998
<PAGE> 1
EXHIBIT 25.5
FORM T-1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal
executive offices)
------------------
AIMCO PROPERTIES, L.P.
(Exact name of obligor as specified in its charter)
Delaware 84-1275621
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1873 South Bellaire Street, 17th Fl.
Denver, CO 80222
(Address of principal executive offices) (Zip Code)
------------------
Senior Subordinated Debt Securities
(Title of the indenture securities)
<PAGE> 2
-2-
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, DC
New York State Banking Department, Albany, New York
(b)Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
ITEMS 3., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
The Obligor is currently not in default under any of its outstanding
securities for which United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. LIST OF EXHIBITS
T-1.1 -- Organization Certificate, as amended, issued by
the State of New York Banking Department to transact
business as a Trust Company, is incorporated by
reference to Exhibit T-1.1 to Form T-1 filed on
September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 -- Included in Exhibit T-1.1 of this Statement of
Eligibility.
T-1.3 -- Included in Exhibit T-1.1 of this Statement of
Eligibility.
<PAGE> 3
-3-
16. LIST OF EXHIBITS
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New
York, as amended, is incorporated by reference to
Exhibit T-1.4 to Form T-1 filed on September 15, 1995
with the Commission pursuant to the Trust Indenture
Act of 1939, as amended by the Trust Indenture Reform
Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section
321(b) of the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the
trustee pursuant to law or the requirements of its
supervising or examining authority.
NOTE
As of November 23, 1998, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in ITEM 2., refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering ITEM 2. in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of November, 1998.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ John Guiliano
---------------------
John Guiliano
Vice President
<PAGE> 4
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, NW
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/Gerard F. Ganey
------------------------
By: Gerard F. Ganey
Senior Vice President
<PAGE> 5
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
September 30, 1998
------------------
($ IN THOUSANDS)
ASSETS
- ------
Cash and Due from Banks $ 339,287
Short-Term Investments 161,493
Securities, Available for Sale 563,176
Loans 1,954,456
Less: Allowance for Credit Losses 16,860
----------
Net Loans 1,937,596
Premises and Equipment 58,809
Other Assets 120,308
----------
TOTAL ASSETS $3,180,669
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 646,593
Interest Bearing 1,838,108
----------
Total Deposits 2,484,701
Short-Term Credit Facilities 375,849
Accounts Payable and Accrued Liabilities 142,513
----------
TOTAL LIABILITIES $3,003,063
==========
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 109,648
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 3,422
----------
TOTAL STOCKHOLDER'S EQUITY 177,606
----------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $3,180,669
==========
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
November 2, 1998
<PAGE> 1
EXHIBIT 25.6
FORM T-1
==============================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal executive offices)
------------------
AIMCO PROPERTIES, L.P.
(Exact name of obligor as specified in its charter)
Delaware 84-1275621
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1873 South Bellaire Street, 17th Fl.
Denver, CO 80222
(Address of principal executive offices) (Zip Code)
------------------
Subordinated Debt Securities
(Title of the indenture securities)
<PAGE> 2
-2-
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, DC
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
ITEMS 3., 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15:
The Obligor is currently not in default under any of its outstanding
securities for which United States Trust Company of New York is Trustee.
Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 of Form T-1 are not required under General Instruction B.
16. LIST OF EXHIBITS
T-1.1 -- Organization Certificate, as amended, issued by the State of
New York Banking Department to transact business as a Trust
Company, is incorporated by reference to Exhibit T-1.1 to Form
T-1 filed on September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056).
T-1.2 -- Included in Exhibit T-1.1 of this Statement of Eligibility.
T-1.3 -- Included in Exhibit T-1.1 of this Statement of Eligibility.
<PAGE> 3
-3-
16. LIST OF EXHIBITS
(cont'd)
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to Form
T-1 filed on September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of November 23, 1998, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in ITEM 2., refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering ITEM 2. in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of November, 1998.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ John Guiliano
---------------------------------------
John Guiliano
Vice President
<PAGE> 4
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, NW
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/Gerard F. Ganey
------------------------------
By: Gerard F. Ganey
Senior Vice President
<PAGE> 5
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
September 30, 1998
($ IN THOUSANDS)
<TABLE>
ASSETS
- ------
<S> <C>
Cash and Due from Banks $ 339,287
Short-Term Investments 161,493
Securities, Available for Sale 563,176
Loans 1,954,456
Less: Allowance for Credit Losses 16,860
------------
Net Loans 1,937,596
Premises and Equipment 58,809
Other Assets 120,308
------------
TOTAL ASSETS $ 3,180,669
============
LIABILITIES
- -----------
Deposits:
Non-Interest Bearing $ 646,593
Interest Bearing 1,838,108
------------
Total Deposits 2,484,701
Short-Term Credit Facilities 375,849
Accounts Payable and Accrued Liabilities 142,513
------------
TOTAL LIABILITIES $ 3,003,063
============
STOCKHOLDER'S EQUITY
- --------------------
Common Stock 14,995
Capital Surplus 49,541
Retained Earnings 109,648
Unrealized Gains on Securities
Available for Sale (Net of Taxes) 3,422
------------
TOTAL STOCKHOLDER'S EQUITY 177,606
------------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $ 3,180,669
============
</TABLE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory authority
and is true to the best of my knowledge and belief.
Richard E. Brinkmann, SVP & Controller
November 2, 1998
