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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) November 18, 1998
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SECURITY CAPITAL GROUP INCORPORATED
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(Exact Name of Registrant as Specified in its Charter)
Maryland
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(State or Other Jurisdiction of Incorporation)
1-13355 36-3692698
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(Commission File Number) (I.R.S. Employer Identification No.)
125 Lincoln Avenue, Santa Fe, New Mexico 87501
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(Address of Principal Executive Offices) (Zip Code)
(505) 982-9292
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(Registrant's Telephone Number, Including Area Code)
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ITEM 5. OTHER EVENTS
On November 18, 1998, Security Capital Group Incorporated ("Security
Capital") commenced a program for the offer of its Medium-Term Notes, Series A
due nine months or more from date of issue ("Medium-Term Notes") in an aggregate
initial offering price of up to $200,000,000. The Medium-Term Notes are part of
the aggregate of $1,000,000,000 in common stock, preferred stock, debt
securities, warrants to purchase common stock, warrants to purchase preferred
stock and warrants to purchase debt securities registered by Security Capital
pursuant to a Registration Statement on Form S-3 (the "Registration Statement")
filed with the Securities and Exchange Commission (the "Commission")
(Registration No. 333-64979) for offer pursuant to Rule 415 promulgated under
the Securities Act of 1933, as amended (the "Act"). A Prospectus Supplement
dated November 18, 1998 and a base Prospectus dated October 13, 1998 relating to
the Medium-Term Notes has been filed with the Commission pursuant to Rule 424(b)
under the Act. The issuance and sale of the Medium-Term Notes may be made from
time to time in various amounts with varying terms pursuant to an Indenture,
dated as of November 16, 1998 (the "Indenture"), between Security Capital and
State Street Bank and Trust Company, as Trustee, and the Resolution of the Board
of Directors of Security Capital, dated November 16, 1998 (the "Board
Resolution"), pursuant to Section 301 of the Indenture. The Indenture and the
Board Resolution are attached hereto as Exhibits 4.1 and 4.2, respectively, and
incorporated by reference herein.
The Medium-Term Notes will be distributed pursuant to a Distribution
Agreement, dated as of November 18, 1998 (the "Distribution Agreement"), among
Security Capital, J.P. Morgan Securities Inc., Goldman, Sachs & Co., Chase
Securities Inc. and Merrill Lynch, Pierce, Fenner and Smith Incorporated. The
Distribution Agreement is attached hereto as Exhibit 1 and incorporated by
reference herein. The Medium-Term Notes may bear fixed or floating rates of
interest and will be issued substantially in the forms attached hereto as
Exhibits 4.3 and 4.4, respectively, which forms are incorporated by reference
herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
Exhibit
No. Document Description
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1 Distribution Agreement, dated November 18, 1998, among Security
Capital, J.P. Morgan Securities Inc., Goldman, Sachs & Co., Chase
Securities Inc. and Merrill Lynch, Pierce, Fenner and Smith
Incorporated.
4.1 Indenture, dated November 16, 1998, from Security Capital to State
Street Bank and Trust Company, as Trustee.
4.2 Board Resolution, dated November 16, 1998, Pursuant to Section 301 of
the Indenture, dated November 16, 1998, from Security Capital to State
Street Bank and Trust Company, as Trustee.
4.3 Form of Medium-Term Note, Series A (Fixed Rate Note) due nine months or
more from date of issue.
4.4 Form of Medium-Term Note, Series A (Floating Rate Note) due nine months
or more from date of issue.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SECURITY CAPITAL GROUP INCORPORATED
Dated: December 7, 1998 By: /s/ Mark W. Pearson
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Mark W. Pearson
Vice President
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INDEX TO EXHIBITS
Exhibit
No. Document Description
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1 Distribution Agreement, dated November 18, 1998, among Security
Capital, J.P. Morgan Securities Inc., Goldman, Sachs & Co., Chase
Securities Inc. and Merrill Lynch, Pierce, Fenner and Smith
Incorporated.
4.1 Indenture, dated November 16, 1998, from Security Capital to State
Street Bank and Trust Company, as Trustee.
4.2 Board Resolution, dated November 16, 1998, Pursuant to Section 301 of
the Indenture, dated November 16, 1998, from Security Capital to State
Street Bank and Trust Company, as Trustee.
4.3 Form of Medium-Term Note, Series A (Fixed Rate Note) due nine months
or more from date of issue.
4.4 Form of Medium-Term Note, Series A (Floating Rate Note) due nine
months or more from date of issue.
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EXHIBIT 1
SECURITY CAPITAL GROUP INCORPORATED
$200,000,000
Medium-Term Notes, Series A
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
November 18, 1998
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
Chase Securities Inc.
Merrill Lynch, Pierce, Fenner
and Smith Incorporated
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
Security Capital Group Incorporated, a Maryland corporation (the
"COMPANY"), confirms its agreement with each of you with respect to the issue
and sale from time to time by the Company of its Medium-Term Notes, Series A Due
Nine Months or More from Date of Issue (the "SECURITIES") in an aggregate
initial offering price of up to $200,000,000 (or the equivalent thereof in one
or more foreign currencies or composite currencies), as such amount shall be
reduced by the aggregate initial offering price of any other debt securities
issued by the Company, whether within or without the United States ("OTHER
SECURITIES") pursuant to the registration statement referred to below, and
agrees with each of you (individually, an "AGENT", and collectively, the
"AGENTS", which term shall include any additional agents appointed pursuant to
Section 12 hereof) as set forth in this Agreement. The Securities will be issued
under the Indenture, dated as of November 16, 1998, as supplemented by
resolutions of the Board of Directors of the Company, dated as of November 16,
1998 (as so supplemented, the "INDENTURE") between the Company and State Street
Bank and Trust Company (the "TRUSTEE"). The Securities shall have the
maturities, interest rates, redemption provisions, if any, and other terms set
forth in the Prospectus referred
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to below as it may be amended or supplemented from time to time. The Securities
will be issued, and the terms and rights thereof established, from time to time
by the Company in accordance with the Indenture.
On the basis of the representations and warranties herein contained, but
subject to the terms and conditions stated herein and to the reservation by the
Company of the right to sell Securities directly to investors (other than
broker-dealers) on its own behalf, the Company hereby (i) appoints the Agents
as the exclusive agents of the Company for the purpose of soliciting and
receiving offers to purchase Securities from the Company by others pursuant to
Section 2(a) hereof and (ii) agrees that, except as otherwise contemplated
herein, whenever it determines to sell Securities directly to any Agent as
principal, it will enter into a separate agreement (each such agreement a "TERMS
AGREEMENT"), relating to such sale in accordance with Section 2(b) hereof.
The Company has prepared and filed a registration statement on Form S-3
(No.333-64979) in respect of the Securities with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"). The Company also has
filed with, or proposes to file with, the Commission pursuant to Rule 424 under
the Securities Act supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Securities. The Registration
Statement, including the exhibits thereto, as amended to the Commencement Date
(as hereinafter defined) is hereinafter referred to as the "REGISTRATION
STATEMENT" and the prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "BASIC PROSPECTUS". The
Basic Prospectus as supplemented by the prospectus supplement or supplements
(each a "PROSPECTUS SUPPLEMENT") specifically relating to the Securities in the
form filed with, or transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act is hereinafter referred to as the "PROSPECTUS". Any
reference in this Agreement to the Registration Statement, the Basic Prospectus,
any preliminary form of Prospectus (a "PRELIMINARY PROSPECTUS") previously filed
with the Commission pursuant to Rule 424 or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a
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particular issue of the Securities (a "PRICING SUPPLEMENT"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
1. REPRESENTATIONS. The Company represents and warrants to, and agrees
with, each Agent as of the Commencement Date, as of each date on which the
Company accepts an offer to purchase Securities (including any purchase by an
Agent as principal pursuant to a Terms Agreement or otherwise), as of each date
the Company issues and sells Securities and as of each date the Registration
Statement or the Basic Prospectus is amended or supplemented, as follows (it
being understood that such representations and warranties shall be deemed to
relate to the Registration Statement, the Basic Prospectus and the Prospectus,
each as amended or supplemented to each such date):
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented, if applicable) comply, or will
comply, as the case may be, in all material respects with the Securities
Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "TRUST
INDENTURE ACT"), and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of
the date of the Prospectus and any amendment or supplement thereto, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, and the Prospectus, as amended or
supplemented at the Commencement Date, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in reliance
upon and in conformity with information relating to any Agent furnished to
the Company in writing by such Agent expressly for use therein;
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(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents
are filed with the Commission will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(c) (i) Arthur Andersen, LLP, who have certified certain financial
statements of the Company and its subsidiaries, ProLogis Trust ("PROLOGIS")
and its subsidiaries and Homestead Village Incorporated ("HOMESTEAD") and
its subsidiaries, (ii) Ernst & Young LLP and KPMG Peat Warwick LLP, who
have certified certain financial statements of Archstone Communities Trust
("ARCHSTONE") and its subsidiaries and (iii) Price Waterhouse S.A., who
have certified certain financial statements of Security Capital U.S. Realty
("USREALTY") and its subsidiaries, are each independent public accountants
as required by the Securities Act;
(d) the financial statements and the related notes thereto, of (i) the
Company and its consolidated subsidiaries, (ii) Archstone, (iii) ProLogis
and (iv) USRealty included or incorporated by reference in the Registration
Statement and the Prospectus, present fairly the consolidated financial
position of each such entity as of the dates indicated and the results of
their respective operations and the changes in their respective
consolidated cash flows for the period specified; the said financial
statements have been prepared in conformity with United States generally
accepted accounting principles, and with respect to USRealty, Luxembourg
regulatory requirements, applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement or the Prospectus present fairly the information required to be
stated therein; the financial information and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with the financial statements presented therein; and the
pro forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration
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Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable;
(e) the compound annual return percentages for investments in
Archstone, ProLogis, USRealty and Homestead included in the Annual Report
on Form 10-K incorporated by reference in the Registration Statement and
the Prospectus have been calculated as described in the Annual Report on
Form 10-K and present fairly on the basis described the compound annual
return for investments in each relevant entity for the periods indicated;
(f) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been (i) any
change in the capital stock (except for non-material changes due to the
grant or exercise of stock options and warrants and the conversion of
shares of Class A Common Stock into shares of Class B Common Stock in the
ordinary course) or increase in the long-term debt of the Company, (ii) any
material change in the percentage amount of capital stock or voting power
owned or controlled by the Company in Archstone, Homestead, ProLogis,
USRealty or SC Realty Incorporated (each a "PRINCIPAL AFFILIATE" and,
collectively, the "PRINCIPAL AFFILIATES"), (iii) any change in the long-
term debt of any Principal Affiliate which is material to the Company and
its direct or indirect interests in the Principal Affiliates, taken as a
whole (the "SCGI GROUP") or (iv) any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, prospects, financial position, shareholders' equity
or results of operations (a "MATERIAL ADVERSE CHANGE") of the SCGI Group,
in each case, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus
neither the Company nor any of its Principal Affiliates has entered into
any transaction or agreement (whether or not in the ordinary course of
business) material to the SCGI Group;
(g) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Maryland,
with power and authority (corporate or other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not reasonably be expected to have a material adverse
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effect on or affect the business, prospects, financial position,
shareholders' equity or results of operations (a "MATERIAL ADVERSE EFFECT")
on the SCGI Group;
(h) each of the Company's direct or indirect subsidiaries or
affiliated entities identified in Schedule I hereto (each a "SPECIFIED
AFFILIATE") has been duly organized and is validly existing as a
corporation or real estate investment trust, as the case may be, under the
laws of its jurisdiction of organization, with power and authority
(corporate, trust and other) to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not reasonably be expected to
have a Material Adverse Effect on the SCGI Group; and all the outstanding
shares of stock or common shares of each Principal Affiliate owned directly
or indirectly by the Company have been duly authorized and validly issued,
are fully paid and, with respect to Principal Affiliates that are
corporations, non-assessable, and are owned directly or indirectly by the
Company free and clear of all liens, encumbrances, security interests and
claims, except as set forth in the Prospectus;
(i) the Company has the equity interest in Archstone, Homestead,
ProLogis and USRealty in the percentage amounts set forth in the
Prospectus, except for non-material changes due to the grant or exercise of
stock options in the ordinary course;
(j) each of this Agreement and any other applicable Terms Agreement
has been duly authorized, executed and delivered by the Company and
constitutes the valid and binding agreement of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and the effect of general principles of equity, and except as rights
to indemnity and contribution may be limited by applicable law;
(k) the Securities have been duly authorized, and, when issued,
authenticated and delivered under the Indenture and delivered to and paid
for by the purchasers thereof in accordance with this Agreement and any
applicable Terms Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding obligations of
the Company entitled to the benefits provided by the Indenture enforceable
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against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity; the Indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid
and binding agreement enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and the effect of general
principles of equity; the Indenture has been duly qualified under the Trust
Indenture Act; and the Securities of any particular issuance of Securities
and the Indenture will conform to the descriptions thereof in the
Prospectus as amended or supplemented to relate to such issuance of
Securities, in all material respects;
(l) none of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations G, T and X of the Board of Governors of the Federal
Reserve System;
(m) except as set forth in the Prospectus, neither the Company nor any
of its Specified Affiliates is, or with the giving of notice or lapse of
time or both would be, in violation of or in default under, its charter,
declaration of trust, or by-laws, as applicable, or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Specified Affiliates is a party or by which
it or any of them or any of their respective properties is bound, except
for violations and defaults which individually or in the aggregate would
not reasonably be expected to have a Material Adverse Effect on the SCGI
Group; the issue and sale of the Securities and the performance by the
Company of its obligations under the Securities, the Indenture, this
Agreement and any Terms Agreement and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its Specified Affiliates is a
party or by which the Company or any of its Specified Affiliates is bound
or to which any of the property or assets of the Company or any of its
Specified Affiliates is subject except for such conflicts, breaches or
defaults that would not reasonably be expected to have a Material Adverse
Effect on the SCGI Group, nor will any such
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action result in any violation of any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Specified Affiliates or any of
their respective properties except for such violations that would not
reasonably be expected to have a Material Adverse Effect on the SCGI Group,
nor will any such action result in any violation of the provisions of the
charter (the "CHARTER") or the by-laws of the Company; and no consent,
approval, authorization, order, license, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, any applicable Terms Agreement
or the Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by any Agent;
(n) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT");
(o) other than as described in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against
or affecting the Company or any of its Specified Affiliates or any of their
respective properties or to which the Company or any of its Specified
Affiliates is or may be a party or to which any property of the Company or
any of its Specified Affiliates is or may be subject which, if determined
adversely to the Company or any of its Specified Affiliates, could
individually or in the aggregate have, or reasonably be expected to have, a
Material Adverse Effect on the SCGI Group, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, and there are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described
as required;
(p) the Company's authorized, issued and outstanding capitalization is
as set forth in the Prospectus; and all of the issued shares
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of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable;
(q) the Company and its Specified Affiliates have directly or
indirectly good and marketable title in fee simple or in leasehold
interest, as the case may be, to all items of real property and good and
marketable title to all personal property owned by them except where the
failure to have such good and marketable title would not be expected to
have a Material Adverse Effect on the SCGI Group, in each case free and
clear of all liens, encumbrances and defects except such as have been
established or permitted to remain pursuant to financing arrangements
entered into in the ordinary course of business or such as do not
materially affect the value of such property and do not interfere with the
use made or proposed to be made of such property by such entity; and any
real property and buildings held under lease by the Company and its
Specified Affiliates are held by them under valid, existing and enforceable
leases with such exceptions as are not material and do not interfere with
the use made or proposed to be made of such property and buildings by the
Company or its Specified Affiliates;
(r) the SCGI Group carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties;
(s) except as would not have a Material Adverse Effect on the SCGI
Group, (i) each of the Company and its Specified Affiliates owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, and (ii) neither the
Company nor any Specified Affiliate has received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization; and
each of the Company and its Specified Affiliates is in compliance with all
laws and regulations relating to the conduct of its business as conducted
as of the date hereof except such as would not reasonably be expected to
have a Material Adverse Effect on the SCGI Group;
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(t) there are no existing or, to the best knowledge of the Company,
threatened employment or labor disputes with the employees of the Company
or any of its Principal Affiliates which are reasonably likely to have a
Material Adverse Effect on the SCGI Group;
(u) the Company and its Principal Affiliates have filed all federal,
state, local and foreign tax returns which have been required to be filed
and have paid all taxes shown thereon and all assessments received by them
or any of them to the extent that such taxes have become due and are not
being contested in good faith; and there is no tax deficiency which has
been or might reasonably be expected to be asserted or threatened against
the Company or any Principal Affiliate except such asserted or threatened
deficiencies that would not reasonably be expected to have a Material
Adverse Effect on the SCGI Group;
(v) the Company and its Specified Affiliates (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a Material Adverse Effect on the
SCGI Group;
(w) there are no costs or liabilities associated with Environmental
Laws that are expected, individually or in the aggregate, to have a
Material Adverse Effect on the SCGI Group;
(x) except as described in or contemplated by the Prospectus, the
Company and its Specified Affiliates own or possess all material licenses,
inventions, copyrights, know-how (including trade secrets and other
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names and other intellectual property
rights ("INTELLECTUAL PROPERTY") currently employed by them in connection
with the business now operated by them, and neither the Company nor any
Specified Affiliate has received any notice of infringement of or conflict
with asserted rights of others with respect to the Intellectual Property
which, individually or in the aggregate, if the
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subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect on the SCGI Group;
(y) each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
that is maintained, administered or contributed to by the Company or any of
its Principal Affiliates for employees or former employees of the Company
and its Principal Affiliates has been maintained in substantial compliance
with its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Internal
Revenue Code of 1986, as amended (the "CODE"); to the best knowledge of the
Company, no prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code has occurred with respect to any such
plan, excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived;
(z) USRealty is not a "passive foreign investment company" within the
meaning of Section 1296(a) of the Code or subject to the accumulated
earnings tax for United States income tax purposes;
(aa) on the date hereof, each of Archstone and ProLogis continues to
satisfy the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Code and the rules and
regulations thereunder and the Company reasonably expects that each of such
entity's current method of operation will enable it to meet the
requirements for taxation as a real estate investment trust under the Code
for the fiscal year ending December 31, 1998 ;
(bb) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Securities, and the Company has not distributed and has agreed not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than the Prospectus, any
preliminary prospectus filed with the Commission or other material
permitted by the Securities Act; and
(cc) immediately after any sale of Securities by the Company hereunder
or under any applicable Terms Agreement, the aggregate
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<PAGE>
amount of Securities which shall have been issued and sold by the
Company hereunder or under any Terms Agreement and of any debt
securities of the Company (other than the Securities) that shall have
been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and
conditions herein set forth, each of the Agents hereby severally and
not jointly agrees, as agent of the Company, to use its reasonable
efforts to solicit offers to purchase the Securities from the Company
upon the terms and conditions set forth in the Prospectus as amended
or supplemented from time to time. The Company may from time to time
offer Notes for sale otherwise than through the Agents; provided,
however, that so long as this Agreement shall be in effect the Company
shall not solicit or accept offers to purchase, or sell, Securities or
any other debt securities with a maturity at the time of original
issuance of nine (9) months or more except pursuant to this Agreement
and any Terms Agreement, or except pursuant to a private placement not
constituting a public offering under the Securities Act or except in
connection with a firm commitment underwriting pursuant to an
underwriting agreement that does not provide for a continuous offering
of medium-term debt securities through any other agents without
amending this Agreement to appoint such agents as additional Agents
hereunder on the same terms and conditions as provided herein for the
Agents and without giving the Agents prior notice of such appointment.
The consent of the then current Agents shall not be necessary for such
purpose. In the absence of such an amendment, the Company may accept
offers to purchase Notes from or through an agent other than the
Agents, provided that (i) the Company shall not have solicited such
offers, (ii) the Company and such agent shall have executed an
agreement with respect to such purchases having terms and conditions
(including, without limitation, commission rates) with respect to such
purchases substantially the same as the terms and conditions that
would apply to such purchases under this Agreement as if such agent
was an Agent (which may be accomplished by incorporating by reference
in such agreement the terms and conditions of this Agreement), and
(iii) the Company shall provide the Agents with a copy of such
agreement following the execution thereof. However, the Company
reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf to investors (other
than broker-dealers).
12
<PAGE>
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Securities. Upon
receipt of at least one business day's prior notice from the Company,
each Agent will suspend solicitation of offers to purchase Securities
from the Company until such time as the Company has advised such Agent
or Agents that such solicitation may be resumed. During the period of
time that such solicitation is suspended, the Company shall not be
required to deliver any opinions, letters or certificates in
accordance with Sections 4(l), 4(m) and 4(n); provided that if the
Registration Statement or Prospectus is amended or supplemented during
the period of suspension (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered for the
Securities or for a change that the Agents deem to be immaterial),
including an amendment or supplement including or incorporating
amended or supplemented financial information, no Agent shall be
required to resume soliciting offers to purchase Securities until the
Company has delivered such opinions, letters and certificates as such
Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the
sale of each Security resulting from a solicitation made or an offer
to purchase received by such Agent, a commission in the form of a
discount from the purchase price of such Security in an amount equal
to the following applicable percentage of the principal amount of such
Security sold:
<TABLE>
<CAPTION>
RANGE OF MATURITIES COMMISSION PERCENTAGE OF
AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES SOLD
<S> <C>
From 9 months to less than 1 year................ .125%
From 1 year to less than 18 months............... .150%
From 18 months to less than 2 years.............. .200%
From 2 years to less than 3 years................ .250%
From 3 years to less than 4 years................ .350%
From 4 years to less than 5 years................ .450%
From 5 years to less than 6 years................ .500%
From 6 years to less than 7 years................ .550%
From 7 years to less than 10 years............... .600%
From 10 years to less than 15 years.............. .625%
From 15 years to less than 20 years.............. .675%
From 20 years to 30 years........................ .750%
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
RANGE OF MATURITIES COMMISSION PERCENTAGE OF
AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES SOLD
<S> <C>
Greater than 30 years............................ *
</TABLE>
*As agreed to by the Company and the applicable Agent at the time of sale.
The Agents are authorized to solicit offers to purchase
Securities only in the principal amount of $1,000 (or, in the case of
Securities not denominated in U.S. dollars, the equivalent thereof in
the applicable foreign currency or composite currency, rounded down to
the nearest 1,000 units of such foreign currency or composite
currency) or any amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Securities not denominated in
U.S. dollars, 1,000 units of such foreign currency or composite
currency). Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Securities received by such Agent as
agent that in its judgment should be considered by the Company. The
Company shall have the sole right to accept offers to purchase the
Securities and may reject any such offer in whole or in part. Each
Agent shall have the right, in its sole discretion, to reject any
offer to purchase Securities, as a whole or in part, that it considers
to be unacceptable and any such rejection shall not be deemed a breach
of its agreements herein contained. The procedural details relating
to the issue and delivery of Securities sold by an Agent as agent and
the payment therefor are set forth in the Administrative Procedures
(as hereinafter defined).
(b) Purchase as Principal. Each sale of Securities to any
Agent as principal shall be made in accordance with the terms of this
Agreement and (unless such Agent shall otherwise agree) a Terms
Agreement which will provide for the sale of such Securities to, and
the purchase thereof by, such Agent. A Terms Agreement will be
substantially in the form of Exhibit A hereto but may take the form of
an exchange of any standard form of written communication between an
Agent and the Company and may also specify certain provisions relating
to the reoffering of such Securities by such Agent. The commitment of
any Agent to purchase Securities as principal, whether pursuant to any
Terms Agreement or otherwise, shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein and
in the applicable Terms Agreement set forth. Each agreement by an
Agent to purchase Securities as principal (pursuant to a Terms
Agreement or otherwise) shall specify the principal amount of
Securities to be purchased by such Agent pursuant
14
<PAGE>
thereto, the price to be paid to the Company for such Securities, the
maturity date of such Securities, the interest rate or interest rate
basis, if any, applicable to such Securities, any other terms of such
Securities, the time and date and place of delivery of and payment for
such Securities (the time and date of any and each such delivery and
payment, the "Time of Delivery"), any provisions relating to rights
of, and default by, underwriters acting together with such Agent in
the reoffering of Securities, and shall also specify any requirements
for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Unless otherwise specified
in a Terms Agreement, the procedural details relating to the issue and
delivery of Securities purchased by an Agent as principal and the
payment therefor shall be as set forth in the Administrative
Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to
the provisions of this Section 2, each Agent shall have complete
discretion as to the manner in which it solicits purchasers for the
Securities and as to the identity thereof.
(d) Administrative Procedures. The Agents and the Company
agree to perform their respective duties and obligations specifically
provided to be performed in the Medium-Term Notes Administrative
Procedures (the "Administrative Procedures") attached hereto as
Exhibit B, as the same may be amended from time to time. The
Administrative Procedures may be amended only by written agreement of
the Company and the Agents.
(e) Other Securities. The Company agrees to notify each
Agent of sales by the Company of Other Securities.
3. COMMENCEMENT DATE. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date shall be delivered to
the Agents at the offices of Davis Polk & Wardwell, 450 Lexington Avenue,
New York, New York, at 11:00 a.m., New York City time, on the date of this
Agreement, which date and time of delivery may be postponed by agreement
between the Agents and the Company but in no event shall be later than the
day prior to the date on which solicitation of offers to purchase
Securities is commenced or the first date on which the Company accepts an
offer by any Agent to purchase Securities as principal (such time and date
being referred to herein as the "Commencement Date").
15
<PAGE>
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
each Agent:
(a) to cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule
424(b) under the Securities Act and to prepare, with respect to any
Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a
form previously approved by such Agent and to file such Pricing
Supplement in accordance with Rule 424(b) under the Securities Act;
(b) to deliver to the Agents and counsel for the Agents, at the
expense of the Company, a signed copy of the Registration Statement
(as originally filed) and each amendment thereto, in each case
including exhibits and documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to the Agents
as many copies of the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein
as the Agents may reasonably request;
(c) from the date hereof and prior to the termination of the
offering of the Securities pursuant to this Agreement or any Terms
Agreement, to furnish to the Agents a copy of any proposed amendment
or supplement to the Registration Statement or the Prospectus, for
review by the Agents, and not to file any such proposed amendment or
supplement to which the Agents reasonably object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise the Agents promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to prevent the
16
<PAGE>
issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under
the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase
Securities so long as it is not reasonably satisfied with such
document;
(e) if at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event shall
occur as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when such
Prospectus is delivered to a purchaser, not misleading, or, if in the
opinion of the Agents or the Company, it is necessary at any time to
amend or supplement the Prospectus to comply with law, to immediately
notify the Agents by telephone (with confirmation in writing) and
request each Agent (i) in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Securities from the Company
(and, if so notified, such Agent shall cease such solicitations and
cease using the Prospectus as soon as practicable, but in any event
not later than one business day later); and (ii) to cease sales of any
Securities such Agent may then own as principal. If the Company shall
decide to amend or supplement the Registration Statement or the
Prospectus, as then amended or supplemented, it shall so advise each
Agent promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
the Prospectus, as then amended or supplemented, that will correct
such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any such amendment or
supplement and any documents, opinions, letters and certificates
furnished to the Agents pursuant to Sections 4(h), 4(l), 4(m) and 4(n)
in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to the Agents, upon the
filing with the Commission of such amendment or supplement to the
Prospectus or upon the effectiveness of an amendment to the
Registration Statement, the Agents will resume the solicitation of
offers to purchase Securities hereunder. Notwithstanding any other
provision of this Section 4(e), until the distribution of any
Securities any Agent may own as principal has been completed or in the
event such Agent, in the opinion of its counsel, is otherwise required
to deliver a prospectus in respect of a transaction in the Securities,
if any event described in this Section 4(e) occurs the Company will,
at its own
17
<PAGE>
expense, promptly prepare and file with the Commission an amendment or
supplement, reasonably satisfactory in all respects to such Agent,
that will correct such statement or omission or effect such
compliance, will supply such amended or supplemented Prospectus to
such Agent in such quantities as such Agent may reasonably request and
shall furnish to such Agent pursuant to Sections 4(h), 4(l), 4(m) and
4(n) such documents, certificates, opinions and letters as it may
request in connection with the preparation and filing of such
amendment or supplement;
(f) to make generally available to its security holders and to
the Agents as soon as practicable earning statements covering periods
of at least twelve months beginning, in each case, with the first
fiscal quarter of the Company occurring after the effective date of
the Registration Statement with respect to each sale of Securities,
which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder;
(g) so long as any Securities are outstanding, to furnish to the
Agents copies of all reports or other communications (financial or
other) furnished to holders of Securities, and copies of any reports
and financial statements furnished to or filed with the Commission or
any national securities exchange;
(h) to furnish to the Agents during the term of this Agreement
such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Securities, this Agreement,
the Administrative Procedures, any applicable Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder
as the Agents may from time to time reasonably request and shall
notify the Agents promptly in writing of any downgrading, or on its
receipt of any notice of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an
improvement in the rating accorded any of securities of, or guaranteed
by, the Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(i) that, from the date of any applicable Terms Agreement with
such Agent or other agreement by such Agent to purchase Securities as
principal and continuing to and including the business day following
the related Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of or guaranteed by the
Company which are
18
<PAGE>
substantially similar to the Securities, without the prior written
consent of such Agent;
(j) to use the net proceeds of each offering of Securities in the
manner specified in the Prospectus under "Use of Proceeds;"
(k) as long as any Securities are outstanding, not to be or
become an open-end investment trust, unit investment trust, closed-end
investment company or face-amount certificate company that is or is
required to be registered under the Investment Company Act;
(l) that (i) each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities
offered on the Securities or for a change the Agents deem to be
immaterial), including an amendment or supplement including or
incorporating amended or supplemented financial information and (ii)
each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement or other agreement and such Terms
Agreement or other agreement specifies the delivery of an opinion
under this Section 4(l) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written
opinion of (y) counsel for the Company reasonably satisfactory to such
Agent and (z) the General Counsel of the Company, each dated the date
of such amendment or supplement, or the related Time of Delivery
relating to such sale, as the case may be, in form reasonably
satisfactory to such Agent, of the same tenor as the opinions referred
to in Sections 6(c), 6(d) and 6(e) hereof, respectively, but modified
to relate to the Registration Statement and the Prospectus as amended
and supplemented to the date of such opinions, or, in lieu of such
opinions, counsel and the General Counsel last furnishing such
opinions, may furnish to the Agents a letter to the effect that such
Agent may rely on the opinion of such counsel and such General Counsel
which was last furnished to such Agent to the same extent as though it
were dated the date of such letter (except that the statements in such
last opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented to date of delivery of
such letter);
(m) that (i) each time the Registration Statement or the
Prospectus shall be amended or supplemented to include or incorporate
amended or supplemented financial information and (ii) each time the
Company sells Securities to such Agent as principal pursuant to a
Terms
19
<PAGE>
Agreement or other agreement and such Terms Agreement or other
agreement specifies the delivery of a letter under this Section 4(m)
as a condition to the purchase of Securities pursuant to such Terms
Agreement or other agreement, the Company shall cause the independent
certified public accountants who have certified the financial
statements of the Company and its consolidated subsidiaries,
Archstone, ProLogis and USRealty included or incorporated by reference
in the Registration Statement forthwith to furnish such Agent a
letter, dated the date of such amendment or supplement or the related
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred
to in Section 6(f) hereof but modified to relate to the Registration
Statement and the Prospectus as amended or supplemented to the date of
such letter with such changes as may be necessary to reflect such
amended or supplemented financial information included or incorporated
by reference in the Registration Statement or the Prospectus as
amended or supplemented, provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as
true and correct at such date, as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section
6(e) hereof which was last furnished to such Agent; and
(n) that (i) each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities
offered on the Securities or for a change the Agents deem to be
immaterial), including an amendment or supplement including or
incorporating amended or supplemented financial information and (ii)
each time the Company sells Securities to such Agent as principal and
the applicable Terms Agreement or other agreement specifies the
delivery of a certificate under this Section 4(n) as a condition to
the purchase of Securities pursuant to such Terms Agreement or other
agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate signed by an executive officer
of the Company, dated the date of such amendment or supplement or the
related Time of Delivery relating to such sale, as the case may be, in
form satisfactory to such Agent, of the same tenor as the certificates
referred to in Section 6(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date
of delivery of such certificate or to the effect that the statements
contained in the certificate referred to in Section 6(b) hereof which
was last furnished to such Agent are true and correct at such date as
though made at and as of such date (except that such statements shall
be
20
<PAGE>
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to such date).
5. COST AND EXPENSES. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Securities is
consummated, pay all costs and expenses incident to the performance of the
Company's obligations hereunder and under any applicable Terms Agreement,
including without limiting the generality of the foregoing, all costs,
expenses, fees and disbursements (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any
expenses of the Trustee and of the Agents' counsel, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto),
including any fees, disbursements and expenses of the Agents' counsel,
(iii) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Agents (or in connection with any Terms
Agreement, the applicable Agent) may designate (including reasonable fees
of counsel for the Agents (or such Agent) and their disbursements), (iv) in
connection with the listing of the Securities on any stock exchange, (v)
related to any filing with National Association of Securities Dealers, Inc.
in respect of the Securities, (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to the Agents
and dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Securities.
6. CONDITIONS. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the
Securities, the obligation of any Agent to purchase Securities as principal
pursuant to any Terms Agreement or otherwise, and the obligation of any
other purchaser to purchase Securities shall in each case be subject (1) to
the condition that all representations and warranties of the Company herein
and all statements of officers of the Company made in any certificate
furnished pursuant to the provisions hereof are true and correct (i) in the
case of an Agent's obligation to solicit offers to purchase Securities, at
and as of such Solicitation Time and (ii) in the case of any Agent's or any
other purchaser's obligation to purchase Securities, at and as of the time
the Company accepts the offer to purchase such Securities and, as the case
may be, at and as of the related Time of Delivery or time of purchase; (2)
to the condition that at or prior to such Solicitation Time, time of
acceptance, Time of Delivery or time of purchase, as the case may be, the
Company shall have complied with all its agreements and all conditions on
its part to be performed or
21
<PAGE>
satisfied hereunder; and (3) to the following additional conditions when
and as specified:
(a) Prior to such Solicitation Time or corresponding Time of
Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including,
if applicable, the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act within the applicable time
period prescribed for such filing by the rules and regulations
under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to the reasonable satisfaction of the Agents;
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of (A) any intended or potential
downgrading or (B) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(iii) since the respective dates as of which
information is given in the Prospectus, there shall not have been
(i) any change in the capital stock (except for non-material
changes due to the grant or exercise of stock options and
warrants and the conversion of shares of Class A Common Stock
into shares of Class B Common Stock in the ordinary course) or
increase in the long-term debt of the Company, (ii) any material
change in the percentage amount of capital stock or voting power
owned or controlled by the Company in any Principal Affiliate,
(iii) any change in the long term debt of any Principal Affiliate
which is material to the SCGI Group or (iv) any Material Adverse
Change in the SCGI Group, in each case, otherwise than as set
forth or contemplated in the Prospectus, as amended or
supplemented to such Solicitation Time or at the time such offer
to purchase was made, the effect of which in the judgment of the
applicable Agents makes it impracticable or inadvisable to market
the Securities on the terms and in the manner contemplated in the
Prospectus, as so amended or supplemented;
22
<PAGE>
and neither the Company nor any of its Principal Affiliates shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute,
or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus and except any
such loss or interference that would not reasonably be expected
to have a Material Adverse Effect on the SCGI Group;
(iv) (A) trading generally shall not have been suspended or
materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (B) trading of any securities of or guaranteed by
the Company shall not have been suspended on any exchange or in
any over-the-counter market, (C) a general moratorium on
commercial banking activities in New York shall not have been
declared by either Federal or New York State authorities, or (D)
there shall not have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of such Agent or Agents or of such
other purchaser, is material and adverse and which in the
judgment of such Agent or Agents or of other purchaser makes it
impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented
at the Solicitation Time or at the time such offer to purchase
was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent
or Agents shall have received a certificate of an executive officer of
the Company satisfactory to the Agents, dated the Commencement Date or
Time of Delivery, as the case may be, to the effect set forth in
subsections (a)(i) and (ii) of this Section and to the further effect
that (1) the representations and warranties of the Company contained
herein are true and correct on and as of the Commencement Date or Time
of Delivery, as the case may be, as if made on and as of such date,
(2) the Company has complied with all agreements and all conditions on
its part to be performed or satisfied hereunder or under the
applicable Terms Agreement or other agreement at or prior to the
Commencement Date or Time of
23
<PAGE>
Delivery, as the case may be, and (3) there has not occurred any
Material Adverse Change in the SCGI Group from that set forth or
contemplated in the Registration Statement or Prospectus;
(c) On the Commencement Date, and in the case of a purchase
of Securities by an Agent as principal pursuant to a Terms Agreement
or otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, counsel for the
Company satisfactory to such Agent shall have furnished to the
relevant Agent or Agents their written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation under the laws of Maryland and
in good standing with the State Department of Assessments and
Taxation of Maryland, with corporate power to own its properties
and conduct its business substantially as described in the
Prospectus as then amended or supplemented, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would
not have a Material Adverse Effect on the SCGI Group;
(ii) each Principal Affiliate has been duly organized
and is validly existing as a corporation or real estate
investment trust, as the case may be, under the laws of its
jurisdiction of organization with power and authority (corporate
or other, as the case may be) to own its properties and conduct
its business substantially as described in the Prospectus; and
all of the outstanding shares of stock or common shares of each
Principal Affiliate owned directly or indirectly by the Company
have been duly authorized and validly issued, are fully paid and,
with respect to Principal Affiliates that are corporations, non-
assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims,
except as set forth in the Prospectus;
(iii) other than as described in or contemplated by the
Prospectus, and to the best of such counsel's knowledge, there
are no legal or governmental investigations, actions, suits or
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proceedings pending or threatened against or affecting the
Company or any of its Principal Affiliates or any of their
respective properties or to which the Company or any of its
Principal Affiliates is or may be a party or to which any
property of the Company or its Principal Affiliates is or may be
subject which, if determined adversely to the Company or any of
its Principal Affiliates, could individually or in the aggregate
have, or reasonably be expected to have, a Material Adverse
Effect on the SCGI Group and, other than as described in or
contemplated by the Prospectus and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, and such
counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
(iv) each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium and
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity) and except as rights to indemnity
and contribution hereunder may be limited by applicable law;
(v) the Securities have been duly authorized by the
Company and, when duly executed and delivered by the Company and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by any purchaser of Securities sold
through an Agent as agent or any Agent as principal pursuant to
any Terms Agreement or other agreement, will constitute valid and
binding obligations of the Company entitled to the benefits
provided by the Indenture enforceable against the Company in
accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws now or hereafter in
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effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(vi) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and the
Indenture has been duly qualified under the Trust Indenture Act;
(vii) the Indenture and the Securities conform in all
material respects to the descriptions thereof in the Registration
Statement and the Prospectus;
(viii) neither the Company nor any of its Principal
Affiliates is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under, its charter,
declaration of trust or by-laws or, to such counsel's knowledge,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its Principal Affiliates is a party or by which
it or any of them or any of their respective properties is bound,
except for violations and defaults which individually or in the
aggregate would not reasonably be expected to have a Material
Adverse Effect on the SCGI Group; the issue and sale of the
Securities and the performance by the Company of its obligations
under the Securities, the Indenture, this Agreement and any
applicable Terms Agreement or other agreement pursuant to which
an Agent purchases Securities as principal and the consummation
of the transactions contemplated herein and therein will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its Principal Affiliates is a party or by which the Company or
any of its Principal Affiliates is bound or to which any of the
property or assets of the Company or any of its Principal
Affiliates is subject, nor will any such action result in any
violation of any applicable law or statute or any order,
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rule or regulation of any court or governmental agency or body
known to such counsel having jurisdiction over the Company, its
Principal Affiliates or any of their respective properties except
for conflicts, breaches, defaults or violations which would not
reasonably be expected to have a Material Adverse Effect on the
SCGI Group or on the consummation of the transactions
contemplated by this Agreement, any applicable Terms Agreement or
other agreement pursuant to which an Agent purchases Securities
as principal or the Indenture or on the validity and
enforceability of the securities and the Indenture, nor will any
such action result in any violation of the provisions of the
Charter or by-laws of the Company;
(ix) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation of the other transactions
contemplated by this Agreement, any applicable Terms Agreement or
other agreement pursuant to which an Agent purchases Securities
as principal, or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act and
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities
by the Agents or consents, the failure of which to be obtained
would not have a Material Adverse Effect on the SCGI Group or on
the consummation of the transactions contemplated by this
Agreement, any applicable Terms Agreement or other agreement
pursuant to which an Agent purchases Securities as principal, or
the Indenture or on the validity and enforceability of the
Securities and the Indenture;
(x) the statements in (A) the Basic Prospectus under
"Description of Debt Securities" and "Plan of Distribution" and
in the Prospectus Supplement specifically relating to the
Securities under "Description of Notes," "Plan of Distribution"
and "United States Taxation", (B) the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 under the caption
"Item 1. Business--Relationship with Operating Companies" and (C)
the Company's Proxy Statement for its 1998 annual meeting of
shareholders under the captions "Election of Directors--Outside
Directors Plan", "Adoption of 1998 Long-Term Incentive Plan",
"Executive Compensation--1995 Option Plan", "Executive
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Compensation--Other Option Plans", and "Certain Relationships and
Transactions", insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein,
fairly present in all material respects such legal matters,
documents or proceedings;
(xi) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act
or proceeding therefor initiated or threatened by the Commission;
and
(xii) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements and related
schedules and other financial and statistical data included
therein, as to which such counsel need express no opinion) when
filed with the Commission complied as to form in all material
respects with the Exchange Act, (B) believes that (except for the
financial statements and related schedules and other financial
and statistical data included therein, as to which such counsel
need express no belief) the Registration Statement (including the
documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did not and, as of
the date such opinion is delivered, does not, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (C) is of the opinion that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statements and
related schedules and other financial and statistical data
included therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and (D) believes that (except for the financial statements and
related schedules and other financial and statistical data
included therein, as to which such counsel need express no
belief) the Prospectus, as amended or supplemented, if
applicable, as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under
which they were made, not misleading; provided that in the case
of an opinion delivered on the
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Commencement Date or pursuant to Section 4(l)(i), the opinion and
belief set forth in clauses (C) and (D) above shall be deemed not
to cover information concerning an offering of particular
Securities to the extent such information will be set forth in a
supplement to the Prospectus.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of New York to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Agents' counsel) of other counsel
reasonably acceptable to the Agents' counsel, familiar with the applicable laws;
and (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and its Principal Affiliates
and certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company and its Principal Affiliates. The opinion of such counsel for the
Company shall state that the opinion of any such other counsel upon which they
relied or such certificates is in form satisfactory to such counsel and, in such
counsel's opinion, the Agents and they are reasonably justified in relying
thereon. With respect to the matters to be covered in subparagraph (xii) above
such counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and review and discussion of
the contents thereof but is without independent check or verification except as
specified. In rendering the opinion contained in paragraph (xi) (insofar as said
opinion refers to information in the Prospectus under "Federal Income Tax
Considerations") such opinion may be based upon (a) the Internal Revenue Code,
as amended, and the rules and regulations promulgated thereunder, (b) Maryland
law existing and applicable to the Company, (c) facts and other matters set
forth in the Prospectus, and (d) certain statements and representations made by
the Company to counsel for the Company, provided that such statements and
representations are also set forth in a certificate to the Agents.
(d) On the Commencement Date, and in the case of a purchase
of Securities by an Agent as principal pursuant to a Terms Agreement
or other agreement, at the corresponding Time of Delivery, counsel for
the Company satisfactory to such Agent, shall have furnished to the
Agents their written opinion, in form and substance reasonably
satisfactory to the Agents, to the effect that the Company is not, and
after giving effect to the offering and sale of the Securities will
not be, an "investment company" as such term is defined in the
Investment Company Act.
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(e) On the Commencement Date, and in the case of a purchase
of Securities by an Agent as principal pursuant to a Terms Agreement
or otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the General Counsel
of the Company shall have furnished to the Agents his written opinion,
dated the Commencement Date or Time of Delivery, as the case may be,
in form and substance satisfactory to the Agents, to the effect that:
(i) other than as set forth or contemplated in the
Prospectus and to the best of such counsel's knowledge, there are
no legal or governmental investigations, actions, suits or
proceedings pending or threatened against or affecting the
Company or any of its Principal Affiliates or any of their
respective properties or to which the Company or any of its
Principal Affiliates is or may be a party or to which any
property of the Company or its Principal Affiliates is or may be
the subject which, if determined adversely to the Company or any
of its Principal Affiliates, could individually or in the
aggregate have, or reasonably be expected to have, a Material
Adverse Effect on the SCGI Group; and to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(ii) such counsel believes that (other than the
financial statements and related schedules and other financial
and statistical data included therein, as to which such counsel
need express no belief) the Prospectus did not, as of its date of
issuance, and does not, as amended or supplemented, if
applicable, as of the Time of Delivery, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(iii) neither the Company nor any of its Principal
Affiliates is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under its charter,
declaration of trust or by-laws or any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its Principal
Affiliates is a party or by which it or any of them or any of
their respective properties is bound, except for violations and
defaults which individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect on the
SCGI Group; the issue and sale of the
30
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Securities being delivered at the Time of Delivery and the
performance by the Company of its obligations under the
Securities, the Indenture, this Agreement and any applicable
Terms Agreement or other agreement pursuant to which an Agent
purchases Securities as principal and the consummation of the
transactions contemplated herein and therein will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its Principal
Affiliates is a party or by which the Company or any of its
Principal Affiliates is bound or to which any of the property or
assets of the Company or any of its Principal Affiliates is
subject, nor will any such action result in any violation of any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body known to such counsel having
jurisdiction over the Company, its Principal Affiliates or any of
their respective properties except for such conflicts, breaches,
defaults or violations which would not reasonably be expected to
have a Material Adverse Effect on the SCGI Group nor will any
such action result in any violation of the provisions of the
Charter or by-laws of the Company;
(iv) to the best of such counsel's knowledge based on
reasonable inquiry, the Company and each Principal Affiliate
owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-
regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as
conducted as of the date hereof except for such licenses,
permits, certificates, consents, orders, approvals and other
authorizations, declarations and filings as would not reasonably
be expected to have a Material Adverse Effect on the SCGI Group
and neither the Company nor, to the best of such counsel's
knowledge based on reasonable inquiry, any Principal Affiliate
has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization,
and, to the best of such counsel's knowledge based on reasonable
inquiry, each of the Company and its Principal Affiliates is in
compliance with all laws and regulations relating to the conduct
of its business as conducted
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as of the date of issuance of the Prospectus except for such laws
and regulations as would not reasonably be expected to have a
Material Adverse Effect on the SCGI Group; and
(v) to the best of such counsel's knowledge based on
reasonable inquiry, the Company and its Principal Affiliates (A)
are in compliance with any and all applicable Environmental Laws,
(B) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (C) are in compliance with all
terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the
aggregate, have a Material Adverse Effect on the SCGI Group.
(f) On the Commencement Date, and in the case of a purchase
of Securities by an Agent as principal pursuant to a Terms Agreement
or otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the independent
certified public accountants who have certified the financial
statements of the Company and its Principal Affiliates included or
incorporated by reference in the Registration Statement and
Prospectus, as then amended or supplemented, shall have furnished to
the relevant Agent or Agents a letter, dated the Commencement Date or
Time of Delivery, as the case may be, in form and substance reasonably
satisfactory to such Agent or Agents, containing statements and
information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information relating to the Company contained in or
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented;
(g) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, counsel to the
Agents shall have furnished to the relevant Agent or Agents such
opinion or opinions, dated the Commencement Date or Time of Delivery,
as the case may be, with respect to the validity of the Indenture, the
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent or Agents may
reasonably request, and in each case such counsel shall have received
such papers and information
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as they may reasonably request to enable them to pass upon such
matters and, in rendering such opinion, such counsel may rely as to
matters involving the application of the laws of the State of Maryland
on the opinion of other counsel reasonably acceptable to counsel to
the Agent; and
(h) On the Commencement Date and at each Time of Delivery,
the Company shall have furnished to the relevant Agent or Agents such
further certificates and documents as such Agent or Agents shall
reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the reasonable legal fees
and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the case of the Prospectus or
any preliminary prospectus, in the light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Agent furnished to the Company in writing by such Agent
expressly for use therein; provided, that the foregoing indemnity with respect
to any preliminary prospectus shall not inure to the benefit of any Agent (or to
the benefit of the person controlling any Agent) from whom the person asserting
any such losses, claims, damages or liabilities purchased Securities if such
untrue statement or omission or alleged untrue statement or omission made in
such preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same
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extent as the foregoing indemnity from the Company to each Agent, but only with
reference to information relating to such Agent furnished to the Company in
writing by such Agent expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person jointly with any other
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and in the reasonable
opinion of counsel to the Indemnified Person representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall not,
in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm shall be reasonably satisfactory to the Indemnifying
Person, and any such firm for the Agents and such control persons of the Agents
shall be designated in writing by a majority in interest of the Agents who are
Indemnified Parties and any such separate firm for the Company, its directors,
its officers who sign the Registration Statement and such control persons of the
Company or authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity
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could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein in
connection with any offering of Securities, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Agent on the other hand from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and each Agent on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent on the
other in connection with the offering of such Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
discounts and commissions received by each Agent in respect thereof bear to the
aggregate public offering price of such Securities. The relative fault of the
Company on the one hand and of each Agent on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such Agent and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and each Agent agrees that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if all Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Agent be required to
contribute any amount in excess of the amount by which the total price at which
the
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Securities referred to in the immediately preceding paragraph that were sold by
or through such Agent exceeds the amount of any damages that such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligation of each Agent to contribute
pursuant to this Section 7 is several (in the proportion that the principal
amount of the Securities the sale of which by or through such Agent gave rise to
such losses, claims, damages or liabilities bears to the aggregate principal
amount of the Securities the sale of which by or through any Agent gave rise to
such losses, claims, damages or liabilities) and is not joint.
The indemnity and contribution agreements contained in this Section 7 are
in addition to any liability which the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of an
Agent or any person controlling any Agent or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and (iii)
acceptance of and payment for any of the Securities.
8. TERMINATION.
(a) This Agreement may be terminated at any time (i) by the Company
with respect to any or all of the Agents or (ii) by any Agent with respect
to itself only, in each case upon the giving of written notice of such
termination to each other party hereto. Any Terms Agreement shall be
subject to termination in the absolute discretion of the Agent or Agents
that are parties thereto on the terms set forth or incorporated by
reference therein. The termination of this Agreement shall not require
termination of any agreement by an Agent to purchase Securities as
principal (whether pursuant to a Terms Agreement or otherwise) and the
termination of such an agreement shall not require termination of this
Agreement. In the event this Agreement is terminated with respect to any
Agent, (x) this Agreement shall remain in full force and effect with
respect to any Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect to the
rights and obligations of any party which have previously accrued or which
relate to Securities which are already issued, agreed to be issued or the
subject of a pending
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offer at the time of such termination and (z) in any event, the provisions
of the fourth paragraph of Section 2(a), Section 2(c), the last sentence of
Section 4(e) and Sections 4(g), 4(k), 5, 7, 9, 11 and 14 shall survive;
provided that if at the time of termination an offer to purchase Securities
has been accepted by the Company but the time of delivery to the purchaser
or its agent of such Securities has not yet occurred, the provisions of
Sections 2(b), 2(d), 4(a) through 4(f), 4(j), 4(l) through 4(n) and 6 shall
also survive. If any Terms Agreement is terminated, the provisions of the
last sentence of Section 4(e) and Sections 2(b), 2(d), 4(a), 4(c), 4(d),
4(f), 4(g), 4(i), 4(k), 4(l) through 4(n), 5, 6, 7, 9, 11 and 14 (which
shall have been incorporated by reference in such Terms Agreement) shall
survive.
(b) If this Agreement or any Terms Agreement shall be terminated by
an Agent or Agents because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement or any Terms Agreement or if for any reason the Company
shall be unable to perform its obligations under this Agreement or any
Terms Agreement or any condition of any Agent's obligations cannot be
fulfilled, the Company agrees to reimburse each Agent or such Agents as
have so terminated this Agreement with respect to themselves, severally,
for all out-of-pocket expenses (including the reasonable fees and expenses
of their counsel) reasonably incurred by such Agent or Agents in connection
with this Agreement or the offering of Securities.
9. POSITION OF THE AGENTS. Each Agent, in soliciting offers to purchase
Securities from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Securities. Each Agent
will make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Securities from the Company was solicited
by such Agent and has been accepted by the Company, but such Agent shall not
have any liability to the Company in the event such purchase is not consummated
for any reason. If the Company shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Company shall (i)
hold the relevant Agent harmless against any loss, claim, damage or liability
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
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10. NOTICES. Except as otherwise specifically provided herein or in the
Administrative Procedures, all notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Agents
will be sent, in the case of J.P. Morgan Securities Inc., to 60 Wall Street, New
York, New York 10260 (Telecopy: (212) 648-5907) Attention: Medium-Term Note
Desk, in the case of Goldman, Sachs & Co., to 85 Broad Street, New York, New
York 10004 (Telecopy: (212) 902-3000) Attention: Karen Robertson, in the case of
Chase Securities Inc., to 270 Park Avenue, New York, New York 10017 (Telecopy:
(212) 834-6081) Attention: Medium-Term Note Desk, in the case of Merrill Lynch,
Pierce, Fenner and Smith Incorporated, to World Financial Center, North Tower,
250 Vesey Street, New York, New York 10281 (Telecopy: (212) 449-2234) Attention:
MTN Product Management and, if sent to the Company, to it at SC Group
Incorporated, at 7777 Market Center Avenue, El Paso, Texas 79912 (facsimile
number: (505) 988-8920); Attention: Jeffrey A. Klopf, Senior Vice President.
11. SUCCESSORS. This Agreement and any Terms Agreement shall be binding
upon, and inure solely to the benefit of, each Agent and the Company, and their
respective successors and the officers, directors and controlling persons
referred to herein and (to the extent expressly provided in Section 6) the
purchasers of Securities, and no other person shall acquire or have any right or
obligation under or by virtue of this Agreement or any Terms Agreement.
12. AMENDMENTS. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent; provided that the Company may from time to time, without the
consent of any Agent, amend this Agreement to add or remove as a party hereto
one or more additional firms registered under the Exchange Act, whereupon each
such firm shall become an Agent hereunder on the same terms and conditions as
the other Agents that are parties hereto and the Company shall provide the
Agents with a copy of such agreement following the execution thereof.
13. BUSINESS DAY. Time shall be of the essence in this Agreement and any
Terms Agreement. As used herein, the term "business day" shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City are required or authorized by law or executive order to close.
14. APPLICABLE LAW. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
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15. COUNTERPARTS. This Agreement and any Terms Agreement may be signed in
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
16. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
SECURITY CAPITAL GROUP
INCORPORATED
By: /s/ Jeffrey A. Klopf
---------------------------------
Name: Jeffrey A. Klopf
Title: Senior Vice President
and Secretary
Accepted in New York, New York,
as of the date first above written:
J.P. Morgan Securities Inc.
By: /s/ Robert Post
----------------------------------
Name: Robert Post
Title:
Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
----------------------------------
Name: Goldman, Sachs & Co.
Title:
Merrill Lynch, Pierce, Fenner and Smith
Incorporated
By: /s/ Scott G. Primrose
----------------------------------
Name: Scott G. Primrose
Title:
40
<PAGE>
Chase Securities Inc.
By: /s/ Therese Esperdy
---------------------------------
Name: Therese Esperdy
Title:
41
<PAGE>
Exhibit A
SECURITY CAPITAL GROUP INCORPORATED
MEDIUM TERM NOTES, SERIES A
TERMS AGREEMENT
_______________, 1998
Security Capital Group Incorporated
c/o SC Group Incorporated
7777 Market Center Avenue
El Paso, Texas 79912
Attention: ____________
Re: Distribution Agreement dated as of September , 1998
(the "Distribution Agreement")
The undersigned agrees to purchase your Medium-Term Notes, Series A having
the following terms:
Specified Currency: _______________________________
Principal Amount: _______________________________
Original Issue Date: _______________________________
Settlement Date, Time and Place: ___________________
Maturity Date: ______________________________________
Purchase Price: _________% of Principal Amount, plus accrued interest,
if any, from Settlement Date
Price to Public: __________% of Principal Amount, plus accrued
interest, if any, from Settlement Date
Redemption Date (Dates): , commencing
<PAGE>
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity:
(For Fixed Rate Notes)
Interest Rate: _________________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule:
(For Floating Rate Notes)
Initial Interest Rate: ___________________
Interest Rate Basis (Commercial Paper, LIBOR,
Treasury, ___________): _____________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): _____________________________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): __________________
Interest Payment Period (monthly, quarterly,
semiannually, annually): __________________
Spread: __________________ points (+/-)
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Spread Multiplier: ___________________________%
Maximum Interest Rate: _______________________%
Minimum Interest Rate: _______________________%
Initial Interest Reset Date: _________________
Interest Reset Dates: _______________________
Interest Determination Dates: ________________
Interest Payment Dates: _____________________
Calculation Agent: ___________________________
Other terms of Securities:
For purposes of Section 1(a) and Section 7 of the Distribution Agreement,
it is agreed that the only written information furnished by the Agent to the
Company expressly for use in the Registration Statement and the Prospectus is
(a) the information in the last paragraph on the cover page of the prospectus
supplement specifically relating to the Securities, (b) the information
regarding stabilization in the first paragraph on the inside front cover page of
the prospectus supplement specifically relating to the Securities and (c) under
the caption "Plan of Distribution" in the prospectus supplement specifically
relating to the Securities, the information in (i) the third and fourth
sentences of the second paragraph and (ii) the first sentence of the eighth
paragraph.
Provisions relating to Agent default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11 and 14
of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This Agreement is subject to termination in our absolute discretion on the
terms incorporated by reference herein. If this Agreement is so terminated, the
provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
3
<PAGE>
The certificate referred to in Section 4(n) of the Distribution Agreement,
the opinions referred to in Section 4(l) of the Distribution Agreement and the
accountants' letter referred to in Section 4(m) of the Distribution Agreement
will be required.
[Agent]
By: ___________________________________
(Title)
Accepted:
Security Capital Group Incorporated
By: _______________________________
(Title)
4
<PAGE>
Exhibit B
SECURITY CAPITAL GROUP INCORPORATED
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes, Series A, Due Nine Months or More from Date of
Issuance (the "Notes"), are to be offered on a continuous basis by Security
Capital Group Incorporated (the "Company"). Each of J.P. Morgan Securities Inc.,
Goldman, Sachs & Co., Chase Securities Inc. and Merrill Lynch, Pierce, Fenner
and Smith Incorporated (each an "Agent") has agreed to solicit offers to
purchase the Notes in registered form. The Notes are being sold pursuant to a
Distribution Agreement dated as of November 18, 1998 (the "Agreement") between
the Company and the Agents. In the Agreement, each Agent has agreed to use
reasonable efforts to solicit purchases of the Notes. Each Agent, as principal,
may purchase Notes for its own account and, if such Agent so elects, the Company
and such Agent will enter into a Terms Agreement, as contemplated by the
Agreement. The Company may also solicit offers to purchase and may sell Notes
directly on its own behalf to investors (other than broker-dealers).
The Notes will be issued under an Indenture (the "Indenture"), dated as of
November 16, 1998, between the Company and State Street Bank and Trust Company,
as trustee (the "Trustee"). The Trustee will be the Registrar, Calculation
Agent, Authenticating Agent and Paying Agent for the Notes, and will perform the
duties specified herein. Notes will bear interest at a fixed rate (the "Fixed
Rate Notes"), which may be zero in the case of certain original issue discount
notes (the "OID Notes"), or at floating rates (the "Floating Rate Notes"). Fixed
Rate Notes may pay a level amount in respect of both interest and principal
amortized over the life of the Notes ("Amortizing Notes"). Each Note will be
represented by either a Global Security (as defined below) delivered to the
Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in the
book-entry system maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the holder thereof or a person designated by such holder (a
"Certificated Note"). Except in limited circumstances, an owner of a Book-Entry
Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable solely in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined
<PAGE>
herein, terms defined in the Agreement, the Prospectus (as defined in the
Agreement), the Indenture or the Notes shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of the date hereof (the "Letter of
Representation"), and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of September 27, 1989, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of Settlement (as defined under "Settlement" below) for
one or more Book-Entry Notes, the Company will issue a single global
security in fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000 principal amount of
all such Notes that have the same Maturity Date, redemption or
repayment provisions, Interest Payment Dates, Original Issue Date,
original issue discount provisions (if any), and, in the case of
Fixed Rate Notes, Interest Rate, amortization schedule (if any) or,
in the case of Floating Rate Notes, Initial Interest Rate, Interest
Payment Dates, Interest Payment Period, Calculation Agent, Base Rate,
Index Maturity, Interest Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any) and, in each case, any other relevant
terms (collectively "Terms"). Each Global Security will be dated and
issued as of the date of its authentication by the Trustee. Each
Global Security will bear an "Interest Accrual Date," which will be
(i) with respect to an original Global Security (or any portion
thereof), its original issuance date and (ii) with respect to any
Global Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest Payment Date to
which interest has been paid or duly provided for on the predecessor
Global Security or Securities (or if no such
2
<PAGE>
payment or provision has been made, the original
issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes
may only be denominated and payable in U.S. dollars. No
Global Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any Certificated
Note. No Note issued between a Regular Record Date and
the related Interest Payment Date shall be issued as a
Global Security within the meaning of the Indenture.
Identification Numbers: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of
approximately 900 CUSIP numbers (including tranche
numbers) for assignment to the Global Securities
representing the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a written list
of such series of reserved CUSIP numbers and has
delivered to the Trustee and DTC the written list of
900 CUSIP numbers of such series. The Trustee will
assign CUSIP numbers to Global Securities as described
below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to Global
Securities. At any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global
Securities, the Trustee shall so advise the Company
and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Company
shall deliver a list of such additional CUSIP numbers
to the Trustee and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the security
register maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more participants
in DTC designated by such owner) will designate one or
more participants in DTC with respect to such Note (the
"Participants") to act as agent or
3
<PAGE>
agents for such owner in connection with the book-entry
system maintained by DTC and DTC will record in book-
entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such beneficial owner in such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded through
the records of such Participants or through the
separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent Book-Entry
Notes having the same Terms and for which interest has
been paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is
delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new
CUSIP number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send
to its Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will
exchange such Global Securities for a single Global
Security bearing the new CUSIP number and a new
Interest Accrual Date, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with
4
<PAGE>
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed
$200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent
each $200,000,000 principal amount of the exchanged
Global Security and an additional Global Security will
be authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date
nine months or more from its date of issue.
Notice of Redemption
and the Repayment
Dates: The Trustee will give notice to DTC prior to each
Redemption Date or Repayment Date (as specified in the
Note), if any, at a time and in the manner set forth in
the Letter of Representation.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 and integral multiples thereof. Global
Securities will be denominated in principal amounts not
in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be issued to represent each
$200,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
issued to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
Interest: GENERAL. Interest on each Book-Entry Note will accrue
from the Interest Accrual Date of the Global Security
representing such Note. Unless otherwise specified
therein, each payment of interest on a Book-Entry Note
will include interest accrued to but excluding the
Interest Payment Date; provided that in the case of
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<PAGE>
Floating Rate Notes with respect to which the Interest
Reset Period is daily or weekly, interest payable on
any Interest Payment Date (other than interest payable
on any date on which principal thereof is payable, and,
if the Note is a Book Entry Gap Note (as defined
below), other than interest payable on the first
Interest Payment Date after the Original Issue Date
thereof) will include interest accrued through and
including the Regular Record Date immediately preceding
the Interest Payment Date, except that at maturity or
earlier redemption or repayment, the interest payable
will include interest accrued to, but excluding, the
Maturity Date or the date of redemption or repayment,
as the case may be. Interest payable at the maturity or
upon redemption or repayment of a Book-Entry Note will
be payable to the person to whom the principal of such
Note is payable. Standard & Poor's Corporation will use
the information received in the pending deposit message
described under Settlement Procedure "C" below in order
to include the amount of any interest payable and
certain other information regarding the related Global
Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
REGULAR RECORD DATES. The Regular Record Date with
respect to any Interest Payment Date shall be the date
fifteen calendar days immediately preceding such
Interest Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Book-Entry Notes, other
than Amortizing Notes, will be made semiannually on
March 15 and September 15 of each year, and at maturity
or upon any earlier redemption or repayment and
principal and interest payments on Book-Entry
Amortizing Notes will be made semiannually on April 1
and October 1 of each year or quarterly on January 1,
April 1, July 1 and October 1 of each year, and at
maturity (or any redemption or repayment date);
provided, however, that in the case of a Fixed Rate
Book-Entry Note issued between a Regular Record Date
and an Interest Payment Date or
6
<PAGE>
on an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the
next succeeding Regular Record Date. If any Interest
Payment Date for a Fixed Rate Book-Entry Note is not a
Business Day, the payment due on such day shall be made
on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and
after such Interest Payment Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semiannually or annually. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest will be payable, in the case of Floating Rate
Book-Entry Notes with a daily, weekly or monthly
Interest Reset Date, on the third Wednesday of each
month or on the third Wednesday of March, June,
September and December, as specified pursuant to
Settlement Procedure A" below; in the case of Floating
Rate Book-Entry Notes with a quarterly Interest Reset
Date, on the third Wednesday of March, June, September
and December of each year; in the case of Floating Rate
Book-Entry Notes with a semiannual Interest Reset Date,
on the third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and in the
case of Floating Rate Book-Entry Notes with an annual
Interest Reset Date, on the third Wednesday of the
month specified pursuant to Settlement Procedure "A"
below; provided, however, that if an Interest Payment
Date for Floating Rate Book-Entry Notes would otherwise
be a day that is not a Business Day with respect to
such Floating Rate Book-Entry Notes, such Interest
Payment Date will be the next succeeding Business Day
with respect to such Floating Rate Book-Entry Notes,
except in the case of a LIBOR Note if such Business Day
is in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business
Day; and provided, further, that in the case of a
Floating Rate Book-Entry Note issued between a Regular
Record Date and the related Interest Payment Date (a
"Book-Entry Gap Note"), the first interest payment will
be made on the Interest Payment Date following the next
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<PAGE>
succeeding Regular Record Date, and in such case,
notwithstanding the fact that an Interest Reset Date
may occur prior to such Interest Payment Date, the
Initial Interest Rate shall remain in effect until the
first Interest Reset Date occurring on or subsequent to
such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND REGULAR RECORD DATES. On
the first Business Day of March, June, September and
December of each year, the Trustee will deliver to the
Company and DTC a written list of Interest Payment
Dates that will occur with respect to Book-Entry Notes
during the six-month period beginning on such first
Business Day. Promptly after each date upon which
interest is determined for Floating Rate Notes issued
in book-entry form, the Calculation Agent will notify
the Company, the Trustee and Standard & Poor's
Corporation of the interest rates determined on such
dates.
Calculation of Interest: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a year of
twelve thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of such Notes. Interest on
Floating Rate Book-Entry Notes will be calculated on
the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes,
interest will be calculated on the basis of the actual
number of days in the year.
Payments of Principal
and Interest: PAYMENTS OF INTEREST ONLY. Promptly after each Regular
Record Date, the Trustee will deliver to DTC and upon
request, the Company, a written notice specifying by
CUSIP number the amount of interest to be paid on each
Global Security other than an Amortizing Note on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with maturity or any earlier
redemption or repayment
8
<PAGE>
date) and the total of such amounts. DTC will confirm
the amount payable on each such Global Security on such
Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. In
the case of Amortizing Notes, the Trustee will provide
separate written notice to the Company and to DTC prior
to each Interest Payment Date at the time and in the
manner set forth in the Letter of Representation. The
Trustee will provide notice to the Company of the
aggregate amount of interest to be paid on all Global
Securities (other than Amortizing Notes) promptly after
each Regular Record Date. The Company will pay to the
Trustee, as paying agent, the total amount of interest
due on such Interest Payment Date (and, in the case of
an Amortizing Note, principal and interest) (other than
at maturity), and the Trustee will pay such amount to
DTC at the times and in the manner set forth below
under "Manner of Payment."
PAYMENTS AT MATURITY OR UPON REDEMPTION OR REPAYMENT.
On or about the 15th business day preceding the
Maturity Date or redemption or repayment date of a
Global Security, the Trustee will deliver to the
Company and DTC a written list of principal and
interest to be paid on each Global Security other than
an Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following month.
The Company and DTC will confirm the amounts of such
principal and interest payments with respect to each
such Global Security on or about the fifth Business Day
preceding the Maturity Date or redemption or repayment
date of such Global Security. In the case of Amortizing
Notes, the Trustee will provide separate written notice
to the Company and to DTC prior to the Maturity Date
and any redemption or repayment date, as the case may
be, at the times and in the manner set forth in the
Letter of Representation. The Company will pay to the
Trustee, as the paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the times and
in the manner set forth below under "Manner of
Payment."
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<PAGE>
PAYMENTS NOT ON BUSINESS DAYS. If any Interest Payment
Date or the Maturity Date or redemption or repayment
date of a Global Security representing Fixed Rate Book-
Entry Notes is not a Business Day, the payment due on
such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for
the period from and after such Interest Payment Date,
Maturity Date or redemption or repayment date, as the
case may be. If any Interest Payment Date or the
Maturity Date or redemption or repayment date of a
Global Security representing a Floating Rate Book-Entry
Note would otherwise fall on a day that is not a
Business Day, the payment due on such day shall be made
on the next succeeding day that is a Business Day with
respect to such Notes with the same effect as if such
Business Day were the Interest Payment Date, Maturity
Date or date of redemption or repayment, as the case
may be, except that, in the case of Book-Entry LIBOR
Notes, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date or
redemption or repayment date shall be the immediately
preceding day that is a Business Day with respect to
such Book-Entry LIBOR Notes. Promptly after payment to
DTC of the principal and interest due on the Maturity
Date or redemption or repayment date of such Global
Security, the Trustee will cancel such Global Security
in accordance with the terms of the Indenture and
deliver it to the Company with a certificate of
cancellation. Upon request, the Trustee will deliver to
the Company a written statement indicating the total
principal amount of outstanding Book-Entry Notes as of
the immediately preceding Business Day.
MANNER OR PAYMENT. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at maturity or upon redemption or
repayment shall be paid by the Company to the Trustee
in funds available for immediate use by the Trustee as
of 9:30 a.m. (New York City time) on such date. The
Company will make such payment on such Global
Securities by wire transfer to the Trustee or by
instructing the Trustee to withdraw funds from an
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account maintained by the Company at the Trustee.
The Company will confirm such instructions in
writing to the Trustee. Prior to 10 a.m. (New York
City time) on each Maturity Date or redemption or
repayment date or, if either such date is not a
Business Day, as soon as possible thereafter,
following receipt of such funds from the Company
the Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in a
form previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together
with interest thereon) due on Global Securities on
any Maturity Date or redemption or repayment date.
On each Interest Payment Date or, if any such date
is not a Business Day, as soon as possible
thereafter, interest payments and, in the case of
Amortizing Notes, interest and principal payments
shall be made to DTC in same day funds in
accordance with existing arrangements between the
Trustee and DTC. Thereafter on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded
in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments directly to
the beneficial owner of such Note.
Preparation of Pricing
Supplement: If any order to purchase a Certified Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement
("Pricing Supplement") reflecting the terms of
such Note and will arrange to file the
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<PAGE>
appropriate number of copies of such Pricing
Supplement with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the
Act and will deliver the number of copies of such
Pricing Supplement to the relevant Agent as such
Agent shall request by the close of business on
the following Business Day and shall deliver a
copy of such Pricing Supplement to the Trustee.
The relevant Agent will cause such Pricing
Supplement to be delivered to the purchaser of the
Note.
In each instance that a Pricing Supplement is
prepared, the Agent receiving such Pricing
Supplement will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they
are attached (other than those retained for
files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
and the authentication and issuance of the Global
Security representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Company will be settled on the
third Business Day following such acceptance
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree
to settlement on another day, which shall be no
earlier than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-
Entry Note sold by the Company to or through an
Agent shall be as follows (unless otherwise
specified pursuant to a Terms Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable
means that such Note is a Book-Entry Note and
of the following settlement information:
1. Principal amount.
2. Maturity Date.
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<PAGE>
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such
Note will pay interest annually or semi-
annually and whether such Note is an
Amortizing Note and, if so, the
Amortization Schedule, or, in the case
of a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such
time), Interest Payment Date(s),
including the Initial Interest Payment
Date, Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier (if
any), the Minimum Interest Rate (if any)
and the Maximum Interest Rate (if any).
4. Redemption or repayment provisions, if
any.
5. Settlement date and time.
6. Price.
7. Agent's or Agents' commission, if any,
determined as provided in the Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of
OID, the yield to maturity and the
initial accrual period OID.
10. Any other applicable Terms.
B. The Company will advise the Trustee by
facsimile transmission or other acceptable
means of the information set forth in
Settlement Procedure "A" above. The Trustee
will then assign a CUSIP number to the Global
Security representing such Note and will
notify the Company and the Agent of such
CUSIP number by telephone or electronic
transmission (confirmed in writing) as soon
as practicable.
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<PAGE>
C. Based on information provided to it by the
Company, the Trustee will enter a pending
deposit message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, the relevant
Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for
such Note, the number of days by which
such date succeeds the related DTC
Record Date (which in the case of
Floating Rate Notes which reset daily or
weekly, shall be the date five calendar
days immediately preceding the
applicable Interest Payment Date and, in
the case of all other Notes, shall be
the Regular Record Date as defined in
the Note) and, if known, the amount of
interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time) and
whether such Note is an Amortizing Note
(by an appropriate notation in the
comments field of DTC's Participant
Terminal System).
5. The DTC participant number of the
institution through which the Company
will hold the Book-Entry Note.
D. The Company will complete the Global Security
representing such Note and deliver it to the
Trustee.
E. The Trustee will authenticate the Global
Security representing such Note in accordance
with the terms of the written order of the
Company then in effect.
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<PAGE>
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such
Note to the relevant Agent's participant
account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the
price of such Note less such Agent's
commission, if any. The entry of such a
deliver order shall constitute a
representation and warranty by the Trustee to
DTC that (a) the Global Security representing
such Book-Entry Note has been issued and
authenticated and (b) the Trustee is holding
such Global Security pursuant to the Medium-
Term Note Certificate Agreement between the
Trustee and DTC.
H. Unless the relevant Agent purchased such Note
as principal, such Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to such Agent's participant account
and credit such Note to the participant
accounts of the Participants with respect to
such Note and (ii) to debit the settlement
account of such Participants and credit the
settlement account of such Agent for an
amount equal to the price of such Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. The Trustee, upon confirming receipt of such
funds, will credit to the U.S. dollar account
of the Company maintained at a bank in New
York City, notified to the Trustee from time
to time, in funds available for immediate use
in the amount
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<PAGE>
transferred to the Trustee, in accordance
with Settlement Procedure "G".
K. Unless the relevant Agent purchased such Note
as principal, such Agent will confirm the
purchase of such Note to the purchaser either
by transmitting to the Participants with
respect to such Note a confirmation order or
orders through DTC's institutional delivery
system or by mailing a written confirmation
to such purchaser.
L. Upon request, the Trustee will send to the
Company a statement setting forth the
principal amount of Notes outstanding as of
that date under the Indenture and setting
forth a brief description of any sales of
which the Company has advised the Trustee but
which have not yet been settled.
Settlement: For sales by the Company of Book-Entry Notes to or
through an Agent (unless otherwise specified
pursuant to a Terms Agreement), Settlement
Procedures "A" through "K" set forth above shall
be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the first
business day after the sale
date
B 12:00 noon on the first
business day after the sale
date
C 2:00 p.m. on the first
business day after the sale
date
D 2:00 p.m. on the day before
the settlement date
E 9:00 a.m. on settlement date
F 10:00 a.m. on settlement date
G-H 2:00 p.m. on settlement date
I 4:45 p.m. on settlement date
J-K 5:00 p.m. on settlement date
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<PAGE>
If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined
but no later than 12 noon and 2:00 p.m.,
respectively, on the second Business Day before
the settlement date. Settlement Procedure "I" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date. If
settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee, after receiving notice
from the Company or the Agent, will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 2:00 p.m. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant
to Settlement Procedure "G", the Trustee may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to the
Trustee's participant account, provided that the
Trustee's participant account contains a principal
amount of the Global Security representing such
Note that is at least equal to the principal
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will
mark such Global Security "cancelled," make
appropriate entries in the Trustee's records and
send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service
Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not
all, of the Book-Entry Notes represented by a
Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of
which shall represent such Book-Entry Note or
Notes and shall be cancelled immediately after
issuance and the other of which shall represent
the remaining Book-Entry Notes previously
17
<PAGE>
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the relevant Agent may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "G" and
"H", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any action in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes to have been represented by a Global
Security, the Trustee will provide, in accordance
with Settlement Procedures "E" and "G", for the
authentication and issuance of a Global Security
representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
Posting Rates by
Company: The Company and the Agents will discuss from time
to time the rates of interest per annum to be
borne by and the maturity of Securities that may
be sold as a result of the solicitation of offers
by an Agent. The Company may establish a fixed set
of interest rates and maturities for an offering
period ("posting"). If the Company decides to
change already posted rates, it will promptly
advise the Agents to suspend solicitation of
offers until the new posted rates have been
established with the Agent.
Trustee Not To Risk
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<PAGE>
Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payments to the Company, the
Agents, DTC or any holders of Notes, it being
understood by all parties that payments made by
the Trustee to the Company, the Agents, DTC or any
holders of Notes shall be made only to the extent
that funds are provided to the Trustee for such
purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the Trustee.
Each Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Certificated Note (or any portion thereof)
issued subsequently upon exchange of a
Certificated Note, or in lieu of a destroyed, lost
or stolen Certificated Note, the original issuance
date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note. No Note
issued between a Regular Record Date and the
related Interest Payment Date shall be issued as a
Certificated Note within the meaning of the
Indenture.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for transfer
or exchange at the principal corporate trust
office of the Trustee. Certificated Notes will be
exchangeable for other Certificated Notes having
identical terms but different authorized
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry
Notes.
Maturities: Each Certificated Note will mature on a date nine
months or more from its date of issue.
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<PAGE>
Currency: The currency denomination with respect to any
Certificated Note and the currency of payment of
interest and principal with respect to any such
Certificated Note shall be as set forth therein
and in the applicable pricing supplement.
Denominations: Unless otherwise provided in a Prospectus
Supplement, the denomination of any Certificated
Note will be a minimum of $1,000 (or in the case
of Notes not denominated in U.S. dollars, the
equivalent thereof in the applicable foreign
currency or composite currency, rounded down to
the nearest 1,000 units of such foreign currency
or composite currency) and integral multiples of
$1,000 (or in the case of Notes not denominated in
U.S. dollars, 1,000 units of such foreign currency
or composite currency).
Interest: GENERAL. Interest on each Certificated Note will
accrue from the Original Issue Date of such Note
for the first interest period and from the most
recent date to which interest has been paid for
all subsequent interest periods. Unless otherwise
specified therein, each payment of interest on a
Certificated Note will include interest accrued to
but excluding the Interest Payment Date; provided
that in the case of Floating Rate Notes with
respect to which the Interest Reset Period is
daily or weekly, interest payable on any Interest
Payment Date (other than interest payable on any
date on which principal thereof is payable, and,
if the Note is a Certificated Gap Note (as defined
below), other than interest payable on the first
Interest Payment Date after the Original Issue
Date thereof) will include interest accrued
through and including the Regular Record Date
immediately preceding the Interest Payment Date,
except that at maturity or earlier redemption or
repayment, the interest payable will include
interest accrued to, but excluding, the Maturity
Date or the date of redemption or repayment, as
the case may be.
REGULAR RECORD DATES. The Regular Record Date with
respect to any Interest Payment Date in respect of
a Certificated Note shall be the date fifteen
calendar days immediately preceding such Interest
Payment Date.
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<PAGE>
FIXED RATE CERTIFICATED NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate
Certificated Notes, other than Amortizing Notes,
will be made semiannually on April 1 and October 1
of each year (or, if so indicated in such Note,
annually on April 1 of each year), and at maturity
or upon any earlier redemption or repayment and
principal and interest payments on Certificated
Amortizing Notes will be made semiannually on
April 1 and October 1 of each year or quarterly on
January 1, April 1, July 1 and October 1 of each
year, and at maturity (or any redemption or
repayment date); provided, however that in the
case of a Fixed Rate Certificated Note issued
between a Regular Record Date and an Interest
Payment Date or on an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
FLOATING RATE CERTIFICATED NOTES. Interest
payments will be made on Floating Rate
Certificated Notes monthly, quarterly,
semiannually or annually. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest will be payable, in the case of
Floating Rate Certificated Notes with a daily,
weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third
Wednesday of March, June, September and December,
as specified pursuant to Settlement Procedure "A"
below; in the case of Floating Rate Certificated
Notes with a quarterly Interest Reset Date, on the
third Wednesday of March, June, September and
December of each year; in the case of Floating
Rate Certificated Notes with a semiannual Interest
Reset Date, on the third Wednesday of the two
months specified pursuant to Settlement Procedure
"A" below; and in the case of Floating Rate
Certificated Notes with an annual Interest Reset
Date, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A"
below; provided, however, that if an Interest
Payment Date for Floating Rate Certificated Notes
would otherwise be a day that is not a Business
Day with respect to such Floating Rate
Certificated Notes, such Interest Payment Date
will be
21
<PAGE>
the next succeeding Business Day with respect to such
Floating Rate Certificated Notes, except in the case
of a LIBOR Note if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day; and
provided, further, that in the case of a Floating Rate
Certificated Note issued between a Regular Record Date
and the related Interest Payment Date (a "Certificated
Gap Note"), the first interest payment will be made on
the Interest Payment Date following the next
succeeding Regular Record Date, and in such case,
notwithstanding the fact that an Interest Reset Date
may occur prior to such Interest Payment Date, the
Initial Interest Rate shall remain in effect until the
first Interest Reset Date occurring on or subsequent
to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND REGULAR RECORD DATES.
On the first Business Day of March, June, September
and December of each year, but only upon the request
of the Company, the Trustee will deliver to the
Company a written list of Regular Record Dates and
Interest Payment Dates that will occur with respect to
Certificated Notes during the six-month period
beginning on such first Business Day. Promptly after
each date upon which interest is determined for
Floating Rate Notes issued in certificated form, the
Calculation Agent will notify the Company and the
Trustee of the interest rates determined on such
dates.
Calculation of Interest: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a year of
twelve thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined as
set forth in the form of such Notes. Interest on
Floating Rate Certificated Notes will be calculated on
the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes,
interest will be calculated on the basis of the actual
number of days in the year.
22
<PAGE>
Payments of Principal
and Interest: The Company will pay the Trustee, as Paying Agent, the
principal amount of each Certificated Note (other than
an Amortizing Note), together with interest due
thereon, at its Maturity Date or upon redemption or
repayment of such Note in funds available for
immediate use by the Trustee. In the case of an
Amortizing Note, the Company will pay the Trustee, as
Paying Agent, the principal amount due on such Note on
such date, together with interest due thereon, at its
Maturity Date or upon redemption or repayment of such
Note on such date, together with interest due thereon,
at its Maturity Date or upon redemption or repayment
of such Note in funds available for immediate use by
the Trustee. The Trustee will pay such amount to the
holder of such Note at its Maturity Date or upon
redemption or repayment of such Note upon presentation
and surrender of such Note to the Trustee. Such
payment, together with payment of interest due at
maturity or upon redemption or repayment, will be made
in funds available for immediate use by the holder of
such Note. Promptly after such presentation and
surrender, the Trustee will cancel such Certificated
Note in accordance with the terms of the Indenture and
deliver it to the Company with a certificate of
cancellation. Unless otherwise specified in the
applicable Pricing Supplement, all interest payments
on a Certificated Note or, in the case of a
Certificated Amortizing Note, payments of principal
and interest (other than interest (or interest and
principal) due at maturity or upon redemption or
repayment) will be made by check drawn on the Trustee
(or another person appointed by the Trustee) and
mailed by the Trustee to the person entitled thereto
as provided in such Note and the Indenture; provided,
however, that (i) the holder of $1,000,000 or more of
Notes having the same Interest Payment Date will be
entitled to receive payment by wire transfer of
immediately available funds and (ii) unless otherwise
specified in the applicable Pricing Supplement or
unless alternative arrangements are made, payments on
Notes in a currency other than U.S. dollars will be
made by wire transfer of immediately available funds
to an account maintained by the payee
23
<PAGE>
with a bank located outside the United States and,
with respect to clauses (i) and (ii) above, the holder
of such Notes will provide the Trustee with
appropriate and timely wire transfer instructions.
Promptly after each Regular Record Date, the Trustee
will deliver to the Company a written notice
specifying the aggregate amount of interest to be paid
on all Notes other than an Amortizing Note on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity or any
earlier redemption or repayment date) and the total of
such amounts. In the case of Amortizing Notes, the
Trustee will provide written notice to the Company
specifying the amount of interest and principal to be
paid on each Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption or
repayment date) and the total of such amounts.
Interest at maturity or upon redemption or repayment
will be payable to the person to whom the payment of
principal is payable. On or about the first Business
Day of each month, if applicable, the Trustee will
deliver to the Company a written list of principal and
interest, to the extent ascertainable, to be paid on
all Notes including Amortizing Notes maturing or to be
redeemed or repaid in the following month, if any. The
Trustee, if it is acting as Paying Agent, will be
responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate
Certificated Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date. Maturity Date or redemption or repayment
date, as the case may be. If any Interest Payment Date
or the Maturity Date or redemption or repayment date
of a Floating Rate Certificated Note would otherwise
fall on a day that is not a Business Day with respect
to such Note, the payment due on such day
24
<PAGE>
shall be made on the next succeeding day that is a
Business Day with respect to such Note with the same
effect as if such Business Day were the stated
Interest Payment Date, Maturity Date or date of
redemption or repayment, as the case may be, except
that, in the case of Certificated LIBOR Notes, if such
Business Day is in the next succeeding calendar month,
such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the immediately
preceding day that is a Business Day with respect to
such Certificated LIBOR Notes.
Preparation of Pricing
Supplement: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the Company
will prepare a Pricing Supplement reflecting the terms
of such Note and will arrange to file the appropriate
number of copies of such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act and will deliver the
number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request by the
close of business on the following Business Day. The
relevant Agent will cause such Pricing Supplement to
be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent receiving such Pricing Supplement
will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached (other
than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for an authenticated Certificated
Note delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following such acceptance pursuant to the timetable
for settlement set forth below unless the Company and
the purchaser agree to settlement on another day,
which
25
<PAGE>
shall be no earlier than the second Business Day
following such acceptance.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note sold by the Company to or through an Agent shall
be as follows (unless otherwise specified pursuant to
a Terms Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Currency or currency unit, principal amount
and, if different, currency in which payments
of principal and interest may be made.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semi-annually
and whether such Note is an Amortizing Note
and, if so, the Amortization Schedule, or, in
the case of a Floating Rate Certificated
Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and the
Maximum Interest Rate (if any).
7. Redemption or repayment provisions, if any.
26
<PAGE>
8. Settlement date and time.
9. Price.
10. Agent's or Agents' commission, if any,
determined as provided in the Agreement.
11. Denominations.
12. Net proceeds to the Company.
13. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID.
14. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Trustee.
Such delivery will be made only against such
27
<PAGE>
acknowledgment of receipt and evidence (supplied
by the Company) that instructions have been given
by such Agent for payment to the account of the
Company maintained at the Trustee, Boston,
Massachusetts (or, with respect to Notes payable
in a Specified Currency other than U.S. dollars,
to an account maintained at a bank selected by the
Company notified to the relevant Agent from time
to time in writing) in funds available for
immediate use, of an amount equal to the price of
such Note less such Agent's commission, if any. In
the event that the instructions given by such
Agent for payment to the account of the Company
are revoked, the Company will as promptly as
possible wire transfer to the account of such
Agent an amount of immediately available funds
equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, upon the
reasonable request of the Company, the Trustee
will also send to the Company a statement setting
forth the principal amount of the Notes
outstanding as of that date under the Indenture
and setting forth a brief description of any sales
of which the Company has advised the Trustee but
which have not yet been settled.
Settlement Procedures For sales by the Company of Certificated Notes to or
Timetables: through an Agent (unless otherwise specified pursuant
to a Terms Agreement), Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times (New York City time) set
forth below:
Settlement
28
<PAGE>
Procedure Time
--------- ----
A 2:00 p.m. on day before settlement date
B 3:00 p.m. on day before settlement date
C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant Agent
will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of
such notice, the Company will immediately wire transfer
to the account of such Agent an amount equal to the
amount previously credited thereto in respect of such
Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Agreement, then the
Company will reimburse such Agent or the Trustee, as
appropriate, on an equitable basis for its loss of the
use of the funds during the period when they were
credited to the account of the Company (such
reimbursement for loss of the use of such funds to be
based on the federal funds effective rate then in
effect). Immediately upon receipt of the Certificated
Note in respect of which such failure occurred, the
Trustee will mark such Note "cancelled", make
appropriate entries in the Trustee's records and send
such Note to the Company.
Posting Rates
by Company: The Company and the Agents will from time to time post
the rates of interest per annum to be borne by and the
maturity of Securities that may be sold as a result of
the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company
decides to change already posted rates, it will
promptly
29
<PAGE>
advise the Agents to suspend solicitation of offers
until the new posted rates have been established with
the Agents.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee
or the Paying Agent to risk or expend its own funds in
connection with any payments to the Company, the Agents
or any holders of Notes, it being understood by all
parties that payments made by the Trustee or the Paying
Agent to the Company, the Agents or any holders of
Notes shall be made only to the extent that funds are
provided to the Trustee or the Paying Agent for such
purpose.
30
<PAGE>
Schedule I
SPECIFIED AFFILIATES
JURISDICTION OF
NAME FORMATION
- ---- ---------
SC Group Incorporated Texas
Security Capital Markets Group Incorporated Delaware
Security Capital Global Capital Management Group Delaware
Security Capital Global Strategic Group Incorporated Maryland
Security Capital Real Estate Research Group Maryland
Incorporated
Security Capital (EU) Management Holdings S.A. Luxembourg
Security Capital Financial Services Group Incorporated Delaware
Security Capital Investment Research Incorporated Delaware
Security Capital Global Capital Management Group (Asia) Delaware
Incorporated
BelmontCorp Maryland
Security Capital U.S. Real Estate Shares Incorporated Maryland
Security Capital Preferred Growth Incorporated Maryland
Security Capital EuroPacific Real Estate Shares Maryland
Incorporated
Security Capital Asia/Pacific Real Estate Shares Maryland
Security Capital Real Estate Arbitrage Shares Maryland
Strategic Hotel Capital Incorporated Delaware
Security Capital European Realty Luxembourg
SC Realty Incorporated Nevada
ProLogis Trust Maryland
Archstone Communities Trust Maryland
Homestead Village Incorporated Maryland
Security Capital U.S. Realty Luxembourg
Security Capital Holdings S.A. Luxembourg
CarrAmerica Realty Corporation Maryland
Regency Realty Corporation Florida
Storage USA, Inc. Tennessee
Pacific Retail Trust Maryland
U.S. Realty New Businesses:
City Center Retail Trust Maryland
Urban Growth Property Trust Maryland
31
<PAGE>
JURISDICTION OF
NAME FORMATION
- ---- ---------
Parking Services International Incorporated Maryland
CWS Communities Trust Maryland
32
<PAGE>
EXHIBIT 4.1
================================================================================
SECURITY CAPITAL GROUP INCORPORATED
TO
STATE STREET BANK AND TRUST COMPANY
Trustee
__________________
Indenture
Dated as of November 16, 1998
__________________
Senior Debt Securities
================================================================================
<PAGE>
TABLE OF CONTENTS
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RECITALS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................. 1
Act................................................................... 2
Additional Amounts.................................................... 2
Affiliate............................................................. 2
Authenticating Agent.................................................. 2
Authorized Newspaper.................................................. 2
Bankruptcy Law........................................................ 2
Bearer Security....................................................... 2
Board of Directors.................................................... 2
Board Resolution...................................................... 2
Business Day.......................................................... 2
Capital Stock......................................................... 3
CEDEL................................................................. 3
Commission............................................................ 3
Common Depositary..................................................... 3
Common Shares......................................................... 3
Company............................................................... 3
Company Certificate................................................... 3
Company Request and Company Order..................................... 3
Conversion Event...................................................... 3
Corporate Trust Office................................................ 4
corporation........................................................... 4
coupon................................................................ 4
covenant defeasance................................................... 4
Custodian............................................................. 4
Defaulted Interest.................................................... 4
defeasance............................................................ 4
Dollar or............................................................. 4
DTC................................................................... 4
ECU................................................................... 4
Euroclear............................................................. 4
European Communities.................................................. 4
European Monetary System.............................................. 4
Event of Default...................................................... 4
</TABLE>
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<TABLE>
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<S> <C>
Exchange Act.......................................................... 4
Exchange Date......................................................... 5
Foreign Currency...................................................... 5
GAAP.................................................................. 5
Government Obligations................................................ 5
Hedging Obligations................................................... 5
Holder................................................................ 5
Indenture............................................................. 5
Indexed Security...................................................... 6
interest.............................................................. 6
Interest Payment Date................................................. 6
Make-Whole Amount..................................................... 6
mandatory sinking fund payment........................................ 6
Maturity.............................................................. 6
Notice of Default..................................................... 6
Opinion of Counsel.................................................... 6
optional sinking fund payment......................................... 6
Original Issue Discount Security...................................... 6
Outstanding........................................................... 7
Paying Agent.......................................................... 8
Payment Default....................................................... 8
Permitted Investments................................................. 8
Person................................................................ 10
Place of Payment...................................................... 10
Predecessor Security.................................................. 10
Qualified GIC......................................................... 10
Redemption Date....................................................... 11
Redemption Price...................................................... 11
Registered Security................................................... 11
Regular Record Date................................................... 11
Repayment Date........................................................ 11
Repayment Price....................................................... 11
Required Filing Dates................................................. 11
Responsible Officer................................................... 11
Securities Act........................................................ 11
Security.............................................................. 11
Security Register and Security Registrar.............................. 12
Significant Subsidiary................................................ 12
Special Record Date................................................... 12
Stated Maturity....................................................... 12
Subsidiary............................................................ 12
</TABLE>
ii
<PAGE>
<TABLE>
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<S> <C>
Trust Indenture Act................................................... 12
Trustee............................................................... 12
United States......................................................... 13
United States person.................................................. 13
Yield to Maturity..................................................... 13
SECTION 102. Compliance Certificates and Opinions........................ 13
SECTION 103. Form of Documents Delivered to Trustee...................... 14
SECTION 104. Acts of Holders............................................. 14
SECTION 105. Notices to Trustee and Company.............................. 16
SECTION 106. Notice to Holders; Waiver................................... 16
SECTION 107. Effect of Headings and Table of Contents.................... 17
SECTION 108. Successors and Assigns...................................... 17
SECTION 109. Separability Clause......................................... 18
SECTION 110. Benefits of Indenture....................................... 18
SECTION 111. No Personal Liability....................................... 18
SECTION 112. Governing Law............................................... 18
SECTION 113. Legal Holidays.............................................. 18
SECTION 114. Counterparts................................................ 18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.......................................... 19
SECTION 202. Form of Trustee's Certificate of Authentication.............. 19
SECTION 203. Securities Issuable in Global Form........................... 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................ 20
SECTION 302. Denominations............................................... 24
SECTION 303. Execution, Authentication, Delivery and Dating.............. 24
SECTION 304. Temporary Securities........................................ 27
SECTION 305. Registration, Registration of Transfer and Exchange......... 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............ 33
SECTION 307. Payment of Interest; Interest Rights Preserved.............. 34
SECTION 308. Persons Deemed Owners....................................... 36
SECTION 309. Cancellation................................................ 37
SECTION 310. Computation of Interest..................................... 37
</TABLE>
iii
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................... 37
SECTION 402. Application of Trust Funds.................................. 39
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default........................................... 39
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......... 41
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.................................... 42
SECTION 504. Trustee May File Proofs of Claim............................ 43
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons..................................... 44
SECTION 506. Application of Money Collected.............................. 44
SECTION 507. Limitation on Suits......................................... 45
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
or Make-Whole Amount, Interest and Additional Amounts..... 45
SECTION 509. Restoration of Rights and Remedies.......................... 46
SECTION 510. Rights and Remedies Cumulative.............................. 46
SECTION 511. Delay or Omission Not Waiver................................ 46
SECTION 512. Control by Holders of Securities............................ 46
SECTION 513. Waiver of Past Defaults..................................... 47
SECTION 514. Waiver of Usury, Stay or Extension Laws..................... 47
SECTION 515. Undertaking for Costs....................................... 47
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.......................................... 48
SECTION 602. Certain Rights of Trustee................................... 48
SECTION 603. Not Responsible for Recitals or Issuance of Securities...... 49
SECTION 604. May Hold Securities......................................... 50
SECTION 605. Money Held in Trust; Permitted Investments.................. 50
SECTION 606. Compensation and Reimbursement.............................. 51
SECTION 607. Trustee Eligibility; Conflicting Interests.................. 51
SECTION 608. Resignation and Removal; Appointment of Successor........... 52
SECTION 609. Acceptance of Appointment by Successor...................... 53
SECTION 610. Merger, Conversion, Consolidation or Succession to Business. 54
SECTION 611. Appointment of Authenticating Agent......................... 55
</TABLE>
iv
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders................ 56
SECTION 702. Reports by Trustee.......................................... 57
SECTION 703. Company to Furnish Trustee Names and Addresses of Holders... 57
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Leases and Conveyances................................. 57
SECTION 802. Rights and Duties of Successor Entity....................... 57
SECTION 803. Company Certificate and Opinion of Counsel.................. 58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.......... 58
SECTION 902. Supplemental Indentures with Consent of Holders............. 60
SECTION 903. Execution of Supplemental Indentures........................ 61
SECTION 904. Effect of Supplemental Indentures........................... 61
SECTION 905. Conformity with Trust Indenture Act......................... 61
SECTION 906. Reference in Securities to Supplemental Indentures.......... 61
SECTION 907. Notice of Supplemental Indentures........................... 62
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
Interest and Additional Amounts........................ 62
SECTION 1002. Maintenance of Office or Agency............................ 62
SECTION 1003. Money for Securities Payments to Be Held in
Trust.................................................. 64
SECTION 1004. Existence.................................................. 65
SECTION 1005. Maintenance of Properties.................................. 65
SECTION 1006. Insurance.................................................. 66
SECTION 1007. Payment of Taxes and Other Claims.......................... 66
SECTION 1008. Reports.................................................... 66
SECTION 1009. Statement as to Compliance................................. 67
SECTION 1010. Additional Amounts......................................... 68
</TABLE>
v
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SECTION 1011. Waiver of Certain Covenants................................ 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................... 69
SECTION 1102. Election to Redeem; Notice to Trustee...................... 69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......... 69
SECTION 1104. Notice of Redemption....................................... 70
SECTION 1105. Deposit of Redemption Price................................ 71
SECTION 1106. Securities Payable on Redemption Date...................... 71
SECTION 1107. Securities Redeemed in Part................................ 72
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................... 73
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...... 73
SECTION 1203. Redemption of Securities for Sinking Fund.................. 73
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article................................... 74
SECTION 1302. Repayment of Securities.................................... 74
SECTION 1303. Exercise of Option......................................... 74
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable................................................ 75
SECTION 1305. Securities Repaid in Part.................................. 76
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance...................... 76
SECTION 1402. Defeasance and Discharge................................... 76
SECTION 1403. Covenant Defeasance........................................ 77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance............ 77
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.......... 79
</TABLE>
vi
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.................. 81
SECTION 1502. Call, Notice and Place of Meetings......................... 81
SECTION 1503. Persons Entitled to Vote at Meetings....................... 81
SECTION 1504. Quorum; Action............................................. 81
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................. 83
SECTION 1506. Counting Votes and Recording Action of Meetings............ 84
SECTION 1507. Evidence of Action Taken by Holders........................ 84
SECTION 1508. Proof of Execution of Instruments.......................... 84
</TABLE>
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vii
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and Indenture
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
310(a)(1), (2) and (5) 607(a)
310(a)(3) and (4) Not applicable
310(b) 608(d)
310(c) Not applicable
311 Not applicable
312(b) Not applicable
312(c) 701
313(a) and (c) 702
313(b) Not applicable
314(a)(1), (2) and (3) 1008
314(a)(4) 1008
314(b) Not applicable
314(c) and (e) 102
314(d) Not applicable
315(a), (c), (d) and (e) Not applicable
315(b) 601
316(a) (last sentence) 101 ("Outstanding")
316(a)(1)(A) 512
316(a)(1)(B) 513
316(a)(2) and (c) Not applicable
316(b) 508
317(a)(1) 503
317(a)(2) 504
317(b) Not applicable
318(a) 112
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 of the Trust Indenture Act are a part of and govern
every qualified indenture, whether or not physically contained therein
viii
<PAGE>
INDENTURE, dated as of November 16, 1998, from SECURITY CAPITAL GROUP
INCORPORATED, a Maryland corporation (hereinafter called the "Company"), having
-------
its principal office at 125 Lincoln Avenue, Santa Fe, New Mexico 87501 to STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee
hereunder (hereinafter called the "Trustee"), currently having its Corporate
-------
Trust Office at Two International Place, Corporate Trust Division, Boston,
Massachusetts 02110.
RECITALS
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities") evidencing
----------
its unsecured and unsubordinated indebtedness, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Securities, unlimited as to aggregate principal amount, to bear
interest at the rates or formulas, to mature at such times and to have such
other provisions as shall be fixed therefor as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act (as
herein defined) and the rules and regulations of the Commission (as herein
defined) promulgated thereunder which are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
-----------
otherwise expressly provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-
---------------- ----
liquidating paper," as used in Section 311 of the Trust Indenture Act,
-----------------
shall have the meanings assigned to them in the rules of the Commission
adopted under the Trust Indenture Act;
1
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as herein defined); and
(4) the words "herein," "hereof" and "hereunder" and other words of
------ ------ ---------
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 104(a).
---
"Additional Amounts" means any additional amounts which are required by a
------------------
Security, under circumstances specified therein, to be paid by the Company in
respect of certain taxes imposed on certain Holders and which are owing to such
Holders.
"Affiliate" when used with respect to any Person, means any other Person
---------
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, "control"
-------
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
----------- ----------
"Authenticating Agent" means any authenticating agent appointed by the
--------------------
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
--------------------
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
--------------
"Bearer Security" means a Security which is payable to bearer.
---------------
"Board of Directors" means the board of directors of the Company, the
------------------
executive committee or any other committee of such board duly authorized to act
for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any other
------------
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with
2
<PAGE>
respect to any Securities pursuant to Section 301, any day, other than a
Saturday or Sunday, which is neither a legal holiday nor a day on which banking
institutions in such Place of Payment or particular location are authorized or
required by law, regulation or executive order to close.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
-------------
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation which
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
-----
successor.
"Commission" means the Securities and Exchange Commission, as from time to
----------
time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
-----------------
"Common Shares" means the shares of common stock, par value $.01 per
-------------
share, of the Company.
"Company" means the Person named as the "Company" in the first paragraph
-------
of this Indenture until a successor corporation has become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation, and any other obligor on the Securities.
"Company Certificate" means a certificate signed by the Chairman or a Co-
-------------------
Chairman, Managing Director, Senior Vice President or Vice President of the
Company and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Company Request" and "Company Order" mean, respectively, a written
--------------- -------------
request or order signed in the name of the Company by the Chairman or a Co-
Chairman, Managing Director, Senior Vice President or Vice President of the
Company and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
----------------
(other than the ECU or other currency unit) both by the government of the
country which issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System
3
<PAGE>
and for the settlement of transactions by public institutions of or within the
European Communities or (iii) any currency unit (or composite currency) other
than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at any
----------------------
particular time, its corporate trust business is principally administered, which
office at the date hereof is located at Two International Place, Corporate Trust
Division, Boston, Massachusetts 02110.
"corporation" includes corporations, associations, companies, real estate
-----------
investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"covenant defeasance" has the meaning specified in Section 1403.
-------------------
"Custodian" has the meaning specified in Section 501.
---------
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"defeasance" has the meaning specified in Section 1402.
----------
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
------ -
currency of the United States of America as at the time is legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company.
---
"ECU" means the European Currency Unit as defined and revised from time to
---
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
--------------------
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
------------------------
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder by the Commission.
4
<PAGE>
"Exchange Date" has the meaning specified in Section 304(b).
-------------
"Foreign Currency" means any currency, currency unit or composite
----------------
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles as used in the
----
United States applied on a consistent basis as in effect from time to time,
provided that, solely for purposes of calculating any financial covenants,
- --------
"GAAP" shall mean generally accepted accounting principles as used in the United
States on the date hereof, applied on a consistent basis.
"Government Obligations" means securities which are (i) direct obligations
----------------------
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged, or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and also
includes a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
--------
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Hedging Obligations" means, with respect to any Person, the greater of
-------------------
(a) the net obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, (ii) foreign
exchange contracts or currency swap agreements and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency values or (b) zero.
"Holder" when used with respect to a Registered Security, means the Person
------
in whose name such Registered Security is registered in the Security Register
and, when used with respect to a Bearer Security or any coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as it may from
---------
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and includes
the terms of particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one Person is
-------- -------
acting as Trustee under this instrument, "Indenture" when used with
5
<PAGE>
respect to any one or more series of Securities with respect to which such
Person is acting as Trustee, shall mean this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of those particular series of
Securities with respect to which such Person is acting as Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities with respect to which such
Person is not acting as Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one
or more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that the
----------------
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1010, includes such Additional
Amounts.
"Interest Payment Date" when used with respect to any Security, means the
---------------------
Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
-----------------
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"mandatory sinking fund payment" has the meaning specified in Section
------------------------------
1201.
"Maturity" when used with respect to any Security, means the date on which
--------
the principal of such Security or an installment of principal become due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Notice of Default" has the meaning specified in Section 501.
-----------------
"Opinion of Counsel" means a written opinion of counsel, who may be an
------------------
employee of or counsel for the Company or other counsel satisfactory to the
Trustee.
"optional sinking fund payment" has the meaning specified in Section 1201.
-----------------------------
6
<PAGE>
"Original Issue Discount Security" means any Security which provides for
--------------------------------
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, means, as of the date
-----------
of determination, all Securities theretofore authenticated and delivered under
this Indenture, exclusive of:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company is acting as its own Paying Agent) for the holders of such
Securities and any coupons appertaining thereto, provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or other provision therefor satisfactory
to the Trustee has been made;
(3) Securities, except solely to the extent provided in Section 401,
1402 or 1403, as applicable, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Four or
Fourteen; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there has been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the required
- -------- -------
principal amount of the Outstanding Securities have concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by Section 313 of the Trust Indenture Act, (i)
the principal amount of an Original Issue Discount Security which may be counted
in making such determination or calculation and which shall be deemed
Outstanding for such purpose shall be equal to the amount of principal thereof
which would be (or has been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency which may be counted in making such determination or
calculation and which shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Company, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided
7
<PAGE>
in clause (i) above) of such Security, (iii) the principal amount of any Indexed
Security which may be counted in making such determination or calculation and
which shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant to Section
301, and (iv) Securities owned by the Company or any other obligor on the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not Outstanding, except that, for the purposes of
determining whether the Trustee is protected in making such calculation or in
relying on any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor on the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium or Make-Whole Amount, if any, on) and interest and
Additional Amounts, if any, on any Securities or coupons on behalf of the
Company, or if no such Person is authorized, the Company.
"Payment Default" means any failure to pay any scheduled installment of
---------------
principal of, premium, if any, or interest on any indebtedness within the grace
period provided for such payment in the documentation governing such
indebtedness.
"Permitted Investments" means:
---------------------
(1) Government Obligations;
(2) Direct obligations and fully guaranteed certificates of
beneficial interest of the Export-Import Bank of the United States;
consolidated debt obligations and letter of credit-backed issues of the
Federal Home Loan Banks; participation certificates and senior debt
obligations of the Federal Home Loan Mortgage Corporation; debentures of
the Federal Housing Administration; mortgage-backed securities (except
stripped mortgage securities which are valued greater than par on the
portion of unpaid principal) and senior debt obligations of the Federal
National Mortgage Association; participation certificates of the General
Services Administration; guaranteed mortgage-backed securities and
guaranteed participation certificates and guaranteed pool certificates of
the Small Business Administration; debt obligations and letter of credit-
backed issues of the Student Loan Marketing Association; local authority
bonds of the U.S. Department of Housing and Urban Development; guaranteed
Title XI financing of the U.S. Maritime Administration; guaranteed transit
bonds of the Washington Metropolitan Area Transit Authority; or Resolution
Funding Corporation securities;
(3) Direct obligations of any state of the United States of America
or any subdivision or agency thereof whose unsecured, uninsured and
unguaranteed general
8
<PAGE>
obligation debt is rated, at the time of purchase, at least as high as the
rating then in effect on the Securities by Standard & Poor's Rating
Services, or any obligation fully and unconditionally guaranteed by any
state, subdivision or agency whose unsecured, uninsured and unguaranteed
general obligation debt is rated, at the time of purchase, at least as high
as the rating then in effect on the Securities by Standard & Poor's Rating
Services;
(4) Commercial paper (having original maturities of not more than 270
days) rated, at the time of purchase, "A-1+" by Standard & Poor's Rating
Services or "P-1" by Moody's Investors Services, Inc.;
(5) Federal funds, unsecured certificates of deposit, time deposits
or bankers acceptances (in each case having maturities of not more than 365
days) of any domestic bank (including the Trustee in its commercial
capacity), including a branch office of a foreign bank which branch office
is located in the United States, provided that written legal opinions in
--------
form acceptable to the Trustee are received to the effect that full and
timely payment of such deposit or similar obligation is enforceable against
the principal office or any branch of such bank, which, at the time of
purchase, has a rating of "A-1+" by Standard & Poor's Rating Services or
"P-1" by Moody's Investors Services, Inc.;
(6) Deposits of any bank or savings and loan association which has
combined capital, surplus and undivided profits of not less than
$3,000,000, provided that such deposits are continuously and fully insured
--------
by the Federal Deposit Insurance Corporation, including, without
limitation, an insured money market account of the Trustee;
(7) Investments in money-market funds rated in the highest rating
category by Standard & Poor's Rating Services or Moody's Investors
Services, Inc.; such funds may include those for which the Trustee or an
affiliate of the Trustee provides services for a fee, whether as investment
advisor, custodian, transfer agent, sponsor, distributor or otherwise;
(8) Shares of an open-end, diversified investment company which is
registered under the Investment Company Act of 1940, as amended, and which
(i) invests exclusively in permitted investments of the type set forth in
clauses (1) through (7) above; (ii) seeks to maintain a constant net asset
value per share in accordance with regulations of the Commission; and (iii)
has aggregate net assets of at least $50,000,000 on the date of purchase;
and
(9) Qualified GICs.
Any investment made in accordance with this Indenture may (i) be executed by the
Trustee or the Company with or through the Trustee or its affiliates and (ii) be
made in securities of any entity for which the Trustee or any of its affiliates
serves as offeror, distributor, advisor or other service provider.
9
<PAGE>
"Person" means any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint-stock company, real estate investment
trust, business trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of or within
----------------
any series, means the Corporate Trust Office of the Trustee and any place or
places which the Company may from time to time designate as the place or places
where the principal of (and premium or Make-Whole Amount, if any, on) and
interest and Additional Amounts, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002 and presentations,
surrenders, notices and demands with respect to such Securities and this
Indenture may be made.
"Predecessor Security" when used with respect to any particular Security,
--------------------
means every previous Security evidencing all or a portion of the same debt as
evidenced by such Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Qualified GIC" means an investment contract providing for the investment
-------------
of funds held by the Trustee and insuring a minimum or fixed rate of return on
investments of such funds, which contract shall:
(1) be an obligation of an insurance company or bank whose senior
long-term debt obligations are rated in one of the two highest rating
categories by both Moody's Investors Services, Inc. and Standard & Poor's
Rating Services;
(2) provide that the Trustee may exercise all of the rights under
such contract without the necessity of the taking of action by any other
person;
(3) provide that, if at any time the then current credit standing of
the obligor under such guaranteed investment contract has been lowered or
withdrawn by Moody's Investors Services, Inc. or Standard & Poor's Rating
Services, the Trustee may terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided under
such contract through the date of delivery of such funds to the Trustee;
(4) provide that interest shall be payable not less than annually;
(5) provide that the Trustee may withdraw funds invested without
penalty at any time and from time to time to be applied for the purposes
described therein;
10
<PAGE>
(6) be accompanied by an enforceability opinion from counsel to the
obligor under such guaranteed investment contract in form and substance
satisfactory to the Trustee; and
(7) provide that the Trustee's interest thereunder shall be
transferable to any successor Trustee hereunder.
"Redemption Date" when used with respect to any Security to be redeemed,
---------------
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed,
----------------
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in the
-------------------
Security Register.
"Regular Record Date" when used with respect to an installment of interest
-------------------
payable on any Interest Payment Date on the Registered Securities of or within
any series, means the date specified for that purpose as contemplated by Section
301, whether or not a Business Day.
"Repayment Date" when used with respect to any Security to be repaid or
--------------
repurchased at the option of the Holder, means the date fixed for such repayment
or repurchase by or pursuant to this Indenture.
"Repayment Price" when used with respect to any Security to be repaid or
---------------
repurchased at the option of the Holder, means the price at which it is to be
repaid or repurchased by or pursuant to this Indenture.
"Required Filing Dates" has the meaning specified in Section 1008.
---------------------
"Responsible Officer" when used with respect to the Trustee, means any
-------------------
vice president (whether or not designated by numbers or words added before or
after said title), any assistant vice president, any assistant secretary or any
other officer or assistant officer of the Trustee in the corporate trust
department or similar group of the Trustee or, with respect to any particular
matter arising hereunder, any officer of the Trustee to whom such matter has
been assigned.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning specified in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
-------- -------
there is more than one Person acting as Trustee under this Indenture,
"Securities" when used with respect to the Indenture with respect to which such
Person is acting as Trustee, shall have the meaning stated in the first recital
of this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture,
11
<PAGE>
exclusive, however, of Securities of or within any series with respect to which
such Person is not acting as Trustee.
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 305.
"Significant Subsidiary" means a Subsidiary which otherwise meets the
----------------------
tests ascribed to the term in Regulation S-X promulgated by the Commission under
the Securities Act, except that the tests therein shall be based on 20% of total
assets or income instead of 10%, unless the Company owns or controls, directly
or indirectly, at least 75% of the total voting power of such Subsidiary's
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
(such percentage to be calculated on a fully diluted basis), in which case the
tests shall be based on 10% of total assets or income.
"Special Record Date" when used with respect to the payment of any
-------------------
Defaulted Interest on the Registered Securities of or within any series, means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
----------
association or other business entity of which more than 50% of the total equity
capital and more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or the managing general partner of which is such
Person or a Subsidiary of such Person or (b) the only general partners of which
are such Person or one or more Subsidiaries of such Person (or any combination
thereof).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
-------------------
and as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
-------
of this Indenture until a successor Trustee has become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then acting as a Trustee hereunder; provided,
--------
however, that, if at any time there is more than one such Person, "Trustee" when
- -------
used with respect to the Securities of or within any series, shall mean only the
12
<PAGE>
Trustee with respect to the Securities of such series, and no Trustee of
Securities for any series shall be responsible for the acts or omissions of a
Trustee for any other series of Securities.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
--------------------
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
-----------------
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
------------------------------------
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee a Company Certificate
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenants, compliance with which constitute conditions precedent)
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than certificates provided
pursuant to Section 1009) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation on which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
13
<PAGE>
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case in which
--------------------------------------
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, on an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters on which his or her certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, on a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
If any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series,
as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are
issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of the Outstanding Securities of
such series may, alternatively, be embodied in and evidenced by the record
of such Holders voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of such Holders duly called and
held in accordance with the provisions of Article Fifteen, or a combination
of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments or record or both are delivered to the Trustee and, if
expressly required herein, to the Company. Such instrument or instrument
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
---
instrument or instruments or so voting at any such meeting. Proof of
execution of
14
<PAGE>
any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof or by any other means
acceptable to the Trustee. If such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate is deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (i) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, (ii) such Bearer Security
is produced to the Trustee by some other Person, (iii) such Bearer Security
is surrendered in exchange for a Registered Security or (iv) such Bearer
Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall not be
obligated to do so. Notwithstanding Section 316(c) of the Trust Indenture
Act, such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30
days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If
such a record date is fixed, such request, demand, authorization,
direction,
15
<PAGE>
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 purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
--------
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action
is made on such Security.
SECTION 105. Notices to Trustee and Company. Any request, demand,
------------------------------
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made on, given or
furnished to, or filed with:
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if in writing and mailed, first class postage
prepaid, to the Trustee addressed to it at the address of its Corporate
Trust Office specified in the first paragraph of this Indenture, Attention:
Corporate Trust Administration; or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. When this Indenture provides for
-------------------------
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at such Holder's address as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case in
which notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein
16
<PAGE>
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it is impracticable to give such notice
by mail, then such notification to Holders of Registered Securities as is made
with the approval of the Trustee shall constitute a sufficient notification to
such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, when this Indenture provides
for notice to Holders of Bearer Securities of any event, such notices shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities
and, if the Securities of such series are listed on any securities exchange
outside the United States, in any place at which such Securities are listed on a
securities exchange to the extent that such securities exchange so requires, on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If, by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause, it is impracticable to
publish any notice to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as is given with the approval of
the Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to any particular
Holder of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
When 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 on such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 108. Successors and Assigns. All covenants and agreements in this
----------------------
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture
-------------------
or in any Security or any coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in any
---------------------
Security or any coupon, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability. No recourse under or on any
---------------------
obligation, covenant or agreement contained in this Indenture or in any Security
or any coupon, or because of any indebtedness evidenced thereby, shall be had
against any promoter, as such or, against any past, present or future director,
officer, employee or shareholder, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND ANY
-------------
COUPONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST
INDENTURE ACT WHICH, BY THE PROVISIONS THEREOF, ARE DEEMED OR REQUIRED TO BE
PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH
PROVISIONS. IF ANY PROVISION OF THIS INDENTURE LIMITS, QUALIFIES OR CONFLICTS
WITH THE DUTIES IMPOSED BY OPERATION OF SECTION 318(C) OF THE TRUST INDENTURE
ACT, THE IMPOSED DUTIES SHALL CONTROL.
SECTION 113. Legal Holidays. In any case in which any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security is not a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or any coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu hereof),
payment of the principal of (and premium or Make-Whole Amount, if any, on) or
interest or Additional Amounts, if any, on such Security need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided, however, that no
-------- -------
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
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SECTION 114. Counterparts. This Indenture may be executed in several
------------
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
-------------------
each series and the Bearer Securities, if any, and any coupons of each series,
shall be in substantially the forms as are established in or pursuant to one or
more indentures supplemental hereto or Board Resolutions, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
-----------------------------------------------
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:______________________________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent
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such of the Outstanding Securities of such series as are specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in the manner and in accordance with instructions given
by such Person or Persons specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and in
accordance with instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of (and premium or Make-
Whole Amount, if any, on) and interest and Additional Amounts, if any, on any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company or
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal
------------------------------------
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which
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(except for the matters set forth in clauses (1), (2) and (15) below), if so
provided, may be determined from time to time by the Company with respect to
unissued Securities of or within the series when issued from time to time):
(1) the title of the Securities of or within the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit on the aggregate principal amount of the Securities of
or within 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 or within the series pursuant to Section 304, 305, 306, 906,
1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of or within the
series shall be payable and the amount of principal payable thereon;
(4) the rate or rates at which the Securities of or within the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date
shall be determined, and the basis on which interest shall be calculated if
other than a 360-day year comprised of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Corporate Trust Office where the principal of (and premium or Make-Whole
Amount, if any, on) and interest and Additional Amounts, if any, on
Securities of or within the series shall be payable, any Registered
Securities of or within the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or on the
Company in respect of the Securities of or within the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the currency
or currencies, currency unit or units or composite currency or currencies
in which, and other terms and conditions upon which Securities of or within
the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of or within the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period or
periods within which or the date or dates on which, the price or prices at
which, the currency or currencies, currency unit
21
<PAGE>
or units or composite currency or currencies in which, and other terms and
conditions upon which Securities of or within the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of or within
the series shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of or
within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) the percentage of the principal amount at which Securities will
be issued and, if other than the principal amount thereof, the portion of
the principal amount of Securities of or within the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502, or, if applicable, the portion of the principal amount of
Securities which is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on the Securities of or
within the series shall be payable or in which the Securities of or within
the series shall be denominated;
(12) whether the amount of payments of the principal of (and premium
or Make-Whole Amount, if any, on) or interest or Additional Amounts, if
any, on the Securities of or within the series may be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on the Securities of or
within the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such Securities
are denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or stated
to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so
payable;
22
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(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series on the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of or
within the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of or within the
series may be exchanged for Registered Securities of or within the series
and vice versa (if permitted by applicable laws and regulations), whether
any Securities of or within the series are to be issuable initially in
temporary global form and whether any Securities of or within the series
are to be issuable in permanent global form (with or without coupons) and,
if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and, if Registered Securities of or within the
series are to be issuable as a global Security, the identity of the
depositary for such series, and the date as of which any Bearer Securities
of or within the series and any temporary global Security representing
Outstanding Securities of or within the series shall be dated if other than
the date of original issuance of the first Security of the series to be
issued;
(17) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(18) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen;
(19) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
23
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(20) if the Securities of or within the series are to be issued upon
the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(21) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1010 on the Securities of or
within the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(22) the obligation, if any, of the Company to permit the conversion
of the Securities of such series into Common Shares or other securities of
the Company, and the terms and conditions on which such conversion shall be
effected (including, without limitation, the initial conversion price or
rate, the conversion period, any adjustment of the applicable conversion
price and any requirements relative to the reservation of such shares for
purposes of conversion; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered or Bearer Securities issued in global form, as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions or supplemental
indentures, a copy of an appropriate record of such action(s) shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order for authentication and
delivery of such Securities.
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable as Bearer Securities, as Registered Securities or in any combination
thereof, and in such denominations and amounts as are specified as contemplated
by Section 301. With respect to any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations of
$5,000.
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SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons shall be executed on behalf of the Company by the
Chairman or a Co-Chairman, Managing Director, Senior Vice President, Vice
President or the Treasurer of the Company, and attested by the Company's
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and any coupons may be manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities and such coupons.
Any Securities or any coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or any coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons, 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 shall authenticate and deliver such Securities in accordance with
the Company Order; provided, however, that, in connection with its original
-------- -------
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that, unless otherwise
-------- -------
specified with respect to any series of Securities pursuant to Section 301, a
Bearer Security may be delivered in connection with its original issuance only
if the Person entitled to received such Bearer Security has furnished a
certificate to Euroclear or CEDEL, as the case may be, in the form set forth in
Exhibit A-1 to this Indenture or such other certificate as may be specified with
respect to any series of Securities pursuant to Section 301, dated no earlier
than 15 days prior to the earlier of the date on which such Bearer Security is
delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture.
Except as permitted by Section 306, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled. If all of the Securities of any series
are not to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series so permits, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as the
interest rate or formula, maturity date, date of issuance and date from which
interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Section 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying on:
(1) an Opinion of Counsel complying with Section 102 and stating
that:
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(A) the form or forms of such Securities and any coupons
appertaining thereto have been, or will have been upon compliance with
such procedures as may be specified therein, established in conformity
with the provisions of this Indenture;
(B) the terms of such Securities and any coupons appertaining
thereto have been, or will have been upon compliance with such
procedures as may be specified therein, established in conformity with
the provisions of this Indenture; and
(C) such Securities, together with any coupons appertaining
thereto, when executed by the Company, completed pursuant to such
procedures as may be specified therein and delivered by the Company to
the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles and to such other
matters as may be specified therein; and
(2) a Company Certificate complying with Section 102 and stating that
all conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been, or will have been upon compliance
with such procedures as may be specified therein, complied with and that,
to the best of the knowledge of the signers of such certificate, no Event
of Default with respect to such Securities has occurred and is continuing.
The Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver a Company Order, an Opinion of Counsel or a
Company Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificate with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
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<PAGE>
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or the Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized officer, and such certificate on any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security has been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company delivers such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued or sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon a Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form (with or without coupons), and with such
appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of Securities
of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in
or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Company shall cause definitive Securities of such series to
be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, together with any non-matured coupons appertaining thereto, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no
-------- -------
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer
-------- -------
Security shall be delivered in exchange for a temporary Bearer Security
only in compliance with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities or coupons appertaining thereto of any
series shall in all respects be entitled to the same benefits
27
<PAGE>
under this Indenture as definitive Securities or coupons appertaining
thereto of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security
shall, unless otherwise provided therein, be delivered to the London office
of a depositary or common depositary (the "Common Depositary"), for the
-----------------
benefit of Euroclear and CEDEL.
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
-------------
Trustee definitive Securities, in an aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date, such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in the name of Euroclear or CEDEL, as the
case may be, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of
or within the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary
global Security shall be in bearer form, registered form, permanent global
bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the Common Depository;
provided, however, that, unless otherwise specified in such temporary
-------- -------
global Security, upon such presentation by the Common Depositary, such
temporary global Security shall be accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date
and signed by CEDEL as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided, further, that definitive Bearer
-------- -------
Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture
(or in
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such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL, the
Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable
on a temporary global Security on an Interest Payment Date for Securities
of such series occurring prior to the applicable Exchange Date shall be
payable to Euroclear and CEDEL on such Interest Payment Date upon delivery
by Euroclear and CEDEL to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms
as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary global Security
on such Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth in Exhibit A-1 to this Indenture (or in such other forms
as may be established pursuant to Section 301). Notwithstanding anything to
the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security has been exchanged
for an interest in a definitive Security. Any interest so received by
Euroclear and CEDEL and not paid as herein provided shall be returned to
the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of
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the Company in a Place of Payment a register for each series of Securities (the
registers maintained in such office or in any such office or agency of the
Company in a Place of Payment being herein sometimes referred to collectively as
the "Security Register") in which, subject to such reasonable regulations as it
-----------------
may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose of
------------------
registering Registered Securities and transfers of Registered Securities on such
Security Register as herein provided. In the event that the Trustee ceases to be
Security Registrar, it shall have the right to examine the Security Register at
all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, being a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations
and of a like aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted as contemplated by Section 301, at the option of
the Holder, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security surrenders to any Paying Agent any such missing
coupon in respect of which such a payment has been made, such Holder shall be
entitled to receive the amount of payment; provided, however, that, except as
-------- -------
otherwise provided in Section 1002,
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<PAGE>
interest represented by a coupon shall be payable only upon presentation and
surrender of such coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected and approved by the Company or to a nominee of
such successor to DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered
under the Exchange Act if so required by applicable law or regulation, the
Company shall appoint a successor depositary with respect to such global
Security or Securities. If (i) a successor depositary for such global Security
or Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or
ineligibility, (ii) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities advise
DTC to cease acting as depositary for such global Security or Securities or
(iii) the Company, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) Securities of any series issued
or issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities (provided, however, that the
-------- -------
Company may not make such determination during the 40-day restricted period
provided by Regulation S under the Securities Act or during any other similar
period during which the Securities must be held in global form as may be
required by the Securities Act), then, upon surrender of the global Security or
Securities appropriately endorsed, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities of like series, rank, tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such global Security or Securities. If any beneficial owner
of an interest in a permanent global Security is otherwise entitled to exchange
such interest for Securities of such series and of like tenor and principal
31
<PAGE>
amount of another authorized form and denomination, as specified as contemplated
by Section 301 and provided that any applicable notice provided in the permanent
global Security has been given, then without unnecessary delay but in any event
not earlier than the earliest date on which such interest may be so exchanged,
upon surrender of the global Security or Securities appropriately endorsed, the
Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as is
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges may
-------- -------
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided, further, that no Bearer Security delivered in
-------- -------
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge which may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for
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redemption during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 1103 and ending at the
close of business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if such Securities are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if such Securities are also
issuable as Registered Securities and there is no publication, the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in
part, except, in the case of any Registered Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of such series and like tenor, provided that such
--------
Registered Security is simultaneously surrendered for redemption, or (iv) to
issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
------------------------------------------------
mutilated Security or a Security with a mutilated coupon appertaining thereto is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any of their agents harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there is delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and
(ii) such security or indemnity as may be required by them to save each of them
and any of their agents harmless, then, in the absence of notice to the Company
or the Trustee that such Security or coupon has been acquired by a bona fide
purchaser, the Company shall execute, and upon Company Request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or Make-
-------- -------
Whole Amount, if any, on) and interest and Additional Amounts, if any, on any
Bearer Securities shall, except
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<PAGE>
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge which 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 and any coupons appertaining thereto
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and any coupons appertaining thereto or the destroyed, lost or stolen coupon are
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
such series and any coupons appertaining thereto duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except as
----------------------------------------------
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security 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 such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
-------- -------
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as
34
<PAGE>
the case may be, for the purpose of permitting such party to credit the interest
received by it in respect of such permanent global Security to the accounts of
the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date ("Defaulted Interest") shall
------------------
forthwith cease to be payable to the registered Holder thereof upon the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election, as provided in paragraph
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as provided in this paragraph. Thereupon, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series at
such Holder's address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a similar
notice to be published at least once
35
<PAGE>
in an Authorized Newspaper in each place of payment, but such publications
shall not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to paragraph (2) below. In
case a Bearer Security of any series is surrendered at the office or agency
in a Place of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and on such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this paragraph, such manner of payment is
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any,
on) and (subject to Sections 305 and 307) interest and Additional Amounts, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder of any Bearer Security and the Holder of any coupon as the absolute owner
of such Security or coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or not such
Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
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<PAGE>
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
------------
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and any Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company so acquires any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Canceled Securities and coupons held by the Trustee
shall be destroyed by the Trustee and the Trustee shall deliver a certificate of
such destruction to the Company unless the Company delivers a Company Order
which directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified as
-----------------------
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall
---------------------------------------
upon Company Request cease to be of further effect with respect to any series of
Securities specified in such Company Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series herein
expressly provided for and any right to receive Additional Amounts, as provided
in Section 1010), and the Trustee, upon receipt of a Company
37
<PAGE>
Order and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when:
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered and any coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities of such series and coupons appertaining thereto
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities of such series and coupons
appertaining thereto for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of clauses
(i) and (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee funds
in trust for the purpose, in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities
of such series are payable, and in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for cancellation, for the
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or the Stated
Maturity or Redemption Date, as the case may be;
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(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) The Company has delivered to the Trustee a Company Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money has been deposited with and held by the Trustee
pursuant to subparagraph (B) of paragraph (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003, shall
survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of the
--------------------------
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, for the payment of which such money has been
deposited with or received by the Trustee, but such money need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. Subject to any modifications, additions or
-----------------
deletions relating to any series of Securities as contemplated pursuant to
Section 301, "Event of Default," whenever used herein with respect to any
----------------
particular series of Securities, means any one of the following events (whatever
the reason for such Event of Default and whether or not it is voluntary or
involuntary or effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of or within such series or of
any coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) any Security of such series when due and payable
at its Maturity; or
39
<PAGE>
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of such
series (other than a covenant or warranty a default in the performance of
which or the breach of which is elsewhere specifically provided for in this
Section), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
-----------------
or
(5) default under any bond, debenture, note or other evidence of
indebtedness of the Company or under any mortgage, indenture or other
instrument of the Company (including a default with respect to Securities
of any series other than such series) under which there may be issued or by
which there may be secured any indebtedness of the Company (or by any
Significant Subsidiary, the repayment of which the Company has guaranteed
or for which the Company is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or is hereafter created,
which, after the termination of any applicable grace or cure period, (a)
constitutes a Payment Default or (b) results in the acceleration of such
indebtedness prior to its express maturity and, in each case, the principal
amount of any indebtedness, together with the principal amount of any other
such indebtedness under which there has been a Payment Default or which has
been so accelerated, aggregates $25,000,000 or more; provided that, in
calculating the aggregate principal amount of any such indebtedness, the
Hedging Obligations of any Person under which there has been a Payment
Default or which has been so accelerated shall not be netted against any
other Hedging Obligation of such Person, within a period of 10 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of such series a
written notice specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
-----------------
hereunder; or
(6) the entry by a court of competent jurisdiction of one or more
final judgments, orders or decrees against the Company or any Significant
Subsidiary of the Company in an aggregate amount (excluding amounts covered
by insurance) in excess of $25,000,000 and such judgments, orders or
decrees remain undischarged, unstayed and unsatisfied in an aggregate
amount (excluding amounts covered by insurance) in excess of $25,000,000
for a period of 60 consecutive days; or
(7) the Company or any Significant Subsidiary of the Company pursuant
to or within the meaning of any Bankruptcy Law:
40
<PAGE>
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary of the Company or for all or substantially all of its
property, or
(C) orders the liquidation of the Company or any Significant
Subsidiary of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect to Securities of
such series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
--------------
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
---------
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default (other than an Event of Default set forth in Section 501(7) or
(8)) with respect to Securities of any series at the time Outstanding occurs and
is continuing, then and in every such case, unless the principal of all of the
Outstanding Securities of such series already has become due and payable, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, and the
Make-Whole Amount, if any, on, all the Securities of such series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or
specified portion thereof shall become immediately due and payable. If an Event
of Default set forth in Section 501(7) or (8) occurs and is continuing with
respect to the Securities of any series, then
41
<PAGE>
in each such case, the principal of, and the Make-Whole Amount, if any, on, all
the Securities of such series shall be due and payable immediately, without
notice to the Company.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) The Company has paid or deposited with the Trustee a sum
sufficient to pay, in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of such
series and any coupons appertaining thereto;
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of such series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest is lawful,
interest on overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of such series,
other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on
Securities of such series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
resulting therefrom.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- -------
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series or any coupon
appertaining thereto when
42
<PAGE>
such interest or Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of the Securities of such series and any such coupons,
the whole amount then due and payable on such Securities and any such coupons
for principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, with interest on any overdue principal (and premium
or Make-Whole Amount, if any) and, to the extent that payment of such interest
is legally enforceable, on any overdue installments of interest or Additional
Amounts, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as is sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor on the Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor on the Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee deems most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of
--------------------------------
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor on the Securities of such series or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series is then
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee has made any demand on the Company for the
payment of overdue principal, premium or Make-Whole Amount, if any, or interest
or Additional Amounts, if any) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium or Make-
43
<PAGE>
Whole Amount, if any) and interest and Additional Amounts, if any, owing
and unpaid in respect of the Securities of such series and to file such
other papers or documents and take such other action, including
participating as a member of any official creditors committee appointed in
the matter, as it may deem necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and any coupons appertaining thereto to
make such payments to the Trustee, and in the event that the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and counsel,
and any other amounts due the Trustee or any predecessor Trustee under Section
606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
-----------------------------------------------------------
or Coupons. All rights of action and claims under this Indenture or any of the
- ----------
Securities or any coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
------------------------------
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
(1) to the payment of all amounts due the Trustee and any predecessor
Trustee under Section 606;
44
<PAGE>
(2) to the payment of the amounts then due and unpaid on the
Securities and coupons for principal (and premium or Make-Whole Amount, if
any) and interest and Additional Amounts, if any, payable, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amounts,
if any, respectively; and
(3) to the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any series
-------------------
or any coupon appertaining thereto shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
or Make-Whole Amount, Interest and Additional Amounts. Notwithstanding any other
- -----------------------------------------------------
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium or Make-Whole Amount, if any, on ) and (subject to Sections 305 and
307) interest and Additional Amounts, if any, on such
45
<PAGE>
Security or payment of such coupon on or after the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired or affected without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
------------------------------
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred on or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
--------------------------------
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that:
- --------
(1) such direction is not in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
46
<PAGE>
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein (but the Trustee shall have no obligation
as to the determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults. The Holders of at least a majority
-----------------------
in principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series and any coupons appertaining
thereto waive any past default hereunder with respect to such series and its
consequences, except a default:
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on any
Security of such series or any coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected thereby.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right resulting therefrom.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent which it may lawfully do so) that it shall not at any
time insist on, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any usury, stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent which it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture agree,
---------------------
and each Holder of any Security by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole Amount,
if any, on) or interest or
47
<PAGE>
Additional Amounts, if any, on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of
------------------
any default hereunder with respect to the Securities of any series, the Trustee
shall give to the Holders of the Securities of such series, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such default has been cured or
waived; provided, however, that, except in the case of a default in the payment
-------- -------
of the principal of (or premium or Make-Whole Amount, if any, on) or interest or
Additional Amounts, if any, on any Security of such series, or in the payment of
any sinking fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders of the Securities and coupons
of such series; and provided, further, that in the case of any default or breach
-------- -------
of the character specified in clause (4) of Section 501 with respect to the
Securities of such series and any coupons appertaining thereto, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purposes of this Section, the term "default" means any event which is,
-------
or after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(3) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303,
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(4) whenever, in the administration of this Indenture, the Trustee
deems it desirable that a matter be proved or established prior to taking,
suffering or omitting any
48
<PAGE>
action hereunder, the Trustee (unless other evidence is specifically
prescribed herein) may, in the absence of bad faith on its part, rely on a
Company Certificate;
(5) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any coupons
appertaining thereto pursuant to this Indenture, unless such Holders have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee determines to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(9) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred on it by this
Indenture;
(10) The Trustee shall not be deemed to have knowledge of any event or
fact upon the occurrence of which it may be required to take action
hereunder unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of such event or fact; and
(11) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
has reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
49
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SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or any coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent, Security
-------------------
Registrar, Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust; Permitted Investments. Money held by the
------------------------------------------
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on,
or investment of, any money received by it hereunder except as otherwise agreed
with and for the sole benefit of the Company.
Pending their use under this Indenture, moneys held by the Trustee
hereunder may be invested in Permitted Investments maturing or redeemable at the
option of the holder at or before the time when such moneys are expected to be
needed by the Trustee and shall be so invested pursuant to a Company Order if no
Event of Default known to the Trustee then exists under this Indenture and
otherwise at the discretion of the Trustee. Any investment pursuant to this
Section 605 shall be held by the Trustee as a part of the moneys held by the
Trustee hereunder, as applicable, and shall be sold or redeemed to the extent
necessary to make payments or transfers or anticipated payments from such
moneys.
The Trustee shall be entitled to rely on all written investment
instructions provided by the Company hereunder, and shall have no duty to
monitor the compliance thereof with the restrictions set forth herein. The
Trustee shall have no responsibility or liability for any depreciation in the
value of any investment or for any loss, direct or indirect, resulting from any
investment made in accordance with a Company Order. The Trustee shall be without
liability to the Company or any Holder or any other person in the event that any
investment made in accordance with a Company Order shall cause any person to
incur any liability or rebates or other monies payable pursuant to the Internal
Revenue Code of 1986, as amended.
Any interest realized on investments and any profit realized upon the sale
or other disposition thereof shall be credited to moneys held by the Trustee
hereunder and any loss shall be charged thereto.
50
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SECTION 606. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in
connection with its administration of the trust hereunder (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except to the extent any such expense, disbursement or
advance may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense, arising
out of or in connection with the acceptance or administration of the trust
or trusts or the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder except to the extent any such loss, liability or expense may be
attributable to its own negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities on all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on particular Securities or
any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Trustee Eligibility; Conflicting Interests. There shall at
------------------------------------------
all times be a Trustee hereunder which is eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and has a combined capital and
surplus of at least $50,000,000. If such Trustee publishes reports of condition
at least annually, pursuant to law or the requirements of Federal, State,
Territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Trustee
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor on the Securities or
Affiliate of any such obligor shall serve as Trustee on such Securities. If at
any time the Trustee ceases to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee has not been delivered
to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee fails to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by
the Company or any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee ceases to be eligible under Section 607 and fails
to resign after written request therefor by the Company or any Holder
of a Security who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee becomes incapable of acting or is adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
is appointed or any public officer takes charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns, is removed or becomes incapable of acting,
or if a vacancy occurs in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by or pursuant to a
Board Resolution, shall promptly
52
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appoint a successor Trustee or Trustees with respect to the Securities of
such series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is appointed
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series has been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and, thereupon, the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine, wherein each successor
Trustee shall accept such appointment and which (i) shall contain such
53
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provisions as are 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 such series to
which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as are necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of such series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (iii)
shall add to or change any of the provisions of this Indenture as are
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and, upon the execution
and delivery of such supplemental indenture, the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of such
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to
the Securities of such series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
--------
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons have not been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities
54
<PAGE>
or coupons, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
-----------------------------------
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Whenever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State or District of Columbia
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent ceases to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
is a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation is otherwise eligible under this
Section, without the execution or filing of any paper or further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and the
Company. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent ceases to be eligible in accordance with the provisions of
this Section, the Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable
55
<PAGE>
to the Company and shall give notice of such appointment to all Holders of
Securities of or within the series with respect to which such Authenticating
Agent will serve in the manner set forth in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:____________________________,
as Authenticating Agent
By:____________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
--------------------------------------------
Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
56
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SECTION 702. Reports by Trustee. Within 60 days after February 1 of each
------------------
year commencing with the first February 1 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the Trust Indenture Act a brief
report dated as of such February 1 if required by Section 313(a) of the Trust
Indenture Act.
SECTION 703. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, on such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
- -------- -------
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
-----------------------------------------------------------
Conveyances. The Company will not consolidate or merge with or into (whether or
- -----------
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless (i) the
surviving Person or the Person formed by or surviving such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (the "Surviving
Entity") is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the Surviving Entity
assumes all the obligations, including the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any, on) and interest and
Additional Amounts, if any, on all Securities, according to their tenor, and the
due and punctual performance and observance of all covenants and conditions, of
the Company under the Securities and the Indenture pursuant to a supplemental
Indenture in form reasonably satisfactory to the Trustee; and (iii) immediately
before and after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company as a result of such transaction as
having been incurred by the Company at the time of the transaction, no Event of
Default and no event which, after notice or the lapse of time or both, would
become an Event of Default shall have occurred and be continuing.
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SECTION 802. Rights and Duties of Successor Entity. In case of any such
-------------------------------------
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in the event of a
lease, shall be relieved of any further obligation under this Indenture and the
Securities. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore have not been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any
Securities which such successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Company Certificate and Opinion of Counsel. Any
------------------------------------------
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive a Company Certificate and
an Opinion of Counsel to the effect that any such consolidation, merger, sale,
lease or conveyance, and the assumption by any successor entity, complies with
the provisions of this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
--------------------------------------------------
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for
58
<PAGE>
the benefit of such series) or to surrender any right or power herein
conferred on the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that, in respect of any such
-------- -------
additional Events of Default, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of such series of
Securities to which such additional Events of Default apply to waive such
default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of the principal of (or
premium or Make-Whole Amount, if any, on) or interest or Additional
Amounts, if any, on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Securities of any series or any
coupons appertaining thereto in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any
coupons appertaining thereto as permitted by Sections 201 and 301,
including the provisions and procedures, if applicable, for the conversion
of such Securities into Common Shares or other securities of the Company;
or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as are necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
hereof which may be defective or inconsistent with any other provision
hereof, or to make any other provisions with respect to matters or
questions arising under this Indenture which
59
<PAGE>
shall not be inconsistent with the provisions of this Indenture or to make
any other changes, provided that, in each case, such provisions shall not
--------
adversely affect the interests of the Holders of Securities of any series
or any coupons appertaining thereto in any material respect; or
(10) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the Trust Indenture Act; or
(11) to supplement any of the provisions of this Indenture to such
extent as are necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that, in each case, any such action shall not adversely
--------
affect the interests of the Holders of Securities of such series and any
coupons appertaining thereto or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
-----------------------------------------------
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of such
Holders delivered to the Company and the Trustee, the Company (when authorized
by or pursuant to a Board Resolution) and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and coupons under this Indenture; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium or Make-Whole Amount payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 1010 (except as contemplated by
clause (1) of Section 801 and permitted by clause (1) of Section 901), or
reduce the amount of the principal of an Original Issue Discount Security
or Make-Whole Amount, if any, which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504; or
adversely affect any right of repayment at the option of the Holder of any
Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in
which, the principal of any Security or any premium or Make-Whole Amount or
any Additional Amounts payable in respect thereof or the interest thereon
is payable; or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case
of redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be); or
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<PAGE>
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of which
is required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included for the benefit of
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying on, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of any
---------------------------------
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company so
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<PAGE>
determines, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after the
---------------------------------
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, Interest
------------------------------------------------------------
and Additional Amounts. The Company covenants and agrees for the benefit of the
- ----------------------
Holders of each series of Securities that it shall duly and punctually pay to
the Trustee prior to 12:00 noon on the applicable date of payment the principal
of (and premium or Make-Whole Amount, if any, on) and interest and Additional
Amounts, if any, on the Securities of such series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest and Additional Amounts, if
any, on Bearer Securities on or before Maturity, other than Additional Amounts,
if any, payable as provided in Section 1010 in respect of principal of (or
premium or Make-Whole Amount, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series
-------------------------------
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of such series may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or on the Company in respect of the
Securities of such series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company shall maintain: (i) in the
city of [BOSTON, MASSACHUSETTS], an office or agency where any Registered
Securities of such series may be presented or surrendered for payment, where any
Registered Securities of such series may be surrendered for exchange, where
notices and demands to or on the Company in respect of the Securities of such
series and this Indenture may be served and where Bearer Securities of such
series and any coupons appertaining thereto may be presented or surrendered for
payment in the circumstances described in the following paragraph (and not
otherwise); (ii) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series which is located outside the United
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States, an office or agency where Securities of such series and any coupons
appertaining thereto may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of such series pursuant
to Section 1010); provided, however, that if the Securities of such series are
-------- -------
listed on the Luxembourg Stock Exchange, The International Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
so requires, the Company shall maintain a Paying Agent for the Securities of
such series in Luxembourg, London or any other required city located outside the
United States, as the case may be, so long as the Securities of such series are
listed on such exchange; and (iii) subject to any laws or regulations applicable
thereto, in a Place of Payment for such series located outside the United States
an office or agency where any Securities of such series may be surrendered for
registration of transfer, where Securities of such series may be surrendered for
exchange and where notices and demands to or on the Company in respect of the
Securities of such series and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Company fails to
maintain any such required office or agency or fails to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of such series pursuant to Section 1010) at the offices
specified in the Security, in London, England, and the Company hereby appoints
the same as its agent to receive all such presentations, surrenders, notices and
demands, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of the principal of (or premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
-------- -------
the Securities of a series are payable in Dollars, payment of the principal of
(and premium and Make-Whole Amount, if any, on) and interest and Additional
Amounts; if any, on any Bearer Security shall be made at the office of the
Company's Paying Agent in the city of Boston, Massachusetts if (but only if)
payment in Dollars of the full amount of such principal, premium, Make-Whole
Amount, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series and any coupons appertaining
thereto may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company
shall
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give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to Section 301, the
Company hereby designates as a Place of Payment for each series of Securities
the office or agency of the Company in the city of Boston, Massachusetts, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
shall maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
-------------------------------------------------
Company at any time acts as its own Paying Agent with respect to any series of
any Securities and any coupons appertaining thereto, it shall, on or before each
due date of the principal of (and premium or Make-Whole Amount, if any, on) or
interest or Additional Amounts, if any, on any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Company has one or more Paying Agents for any series of
Securities and any coupons appertaining thereto, it shall, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any, on) or
interest or Additional Amounts, if any, on any Securities of such series,
deposit with a Paying Agent a sum (in the currency or currencies, currency unit
or units or composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium, Make-Whole Amount, interest or Additional Amounts and (unless such
Paying Agent is the Trustee) the Company shall promptly notify the Trustee of
its action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent shall:
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any, on) or interest or Additional
Amounts, if any, on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor on the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest or
Additional Amounts, if any; and
(3) at any time during the continuance of any such default, on the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee on the
same trusts as those on which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on any Security of any
series and remaining unclaimed for two years after such principal (and premium
or Make-Whole Amount, if any) interest or Additional Amounts, if any, has become
due and payable shall be paid to the Company upon Company Request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of the principal of (and premium or Make-Whole Amount, if
any, on) and interest and any Additional Amounts, if any, on any Security of
such series, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
-------- -------
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company shall do or
---------
cause to be done all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory) and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not be
-------- -------
required to preserve any right or franchise if the Board of Directors determines
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders of
Securities of any series.
SECTION 1005. Maintenance of Properties. The Company shall cause all of
-------------------------
its properties used or useful in the conduct of its business or the business of
any Subsidiary to be
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maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
- -------- -------
Subsidiary from selling or otherwise disposing for value its properties in the
ordinary course of its business.
SECTION 1006. Insurance. The Company shall, and shall cause each of its
---------
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with financially sound
and reputable insurance companies.
SECTION 1007. Payment of Taxes and Other Claims. The Company shall pay or
---------------------------------
discharge or cause to be paid or discharged, before the same become delinquent,
(i) all taxes, assessments and governmental charges levied or imposed on the
Company or any Subsidiary or on the income, profits or property of the Company
or any Subsidiary and (ii) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien on the property of the Company or
any Subsidiary; provided, however, that the Company shall not be required to pay
-------- -------
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1008. Reports.
-------
(1) So long as any Securities of any series are outstanding, the
Company will furnish to Holders of Securities of such series, within 45
days of the filing thereof with the Commission copies of the annual reports
on Form 10-K, within 20 days of the filing thereof with the Commission
copies of the quarterly reports on Form 10-Q and within 15 days after the
filing thereof with the Commission copies of the other information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) that
the Company is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act provided that the Company's obligation to
furnish such reports will be deemed satisfied to the extent the Company
complies with Section 1008(2) and (4). All obligors on the Securities shall
comply with the provisions of Section 314(a) of the Trust Indenture Act.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act or otherwise report
on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall file with the Commission and provide to the
Trustee (i) within 135 days after the end of each fiscal year, annual
reports on Form 10-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such successor
or comparable form), including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and a report thereon by the
Company's certified public accountants; (ii)
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within 65 days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or comparable
form) containing the information required to be contained therein (or
required in any successor or comparable form), including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations";
and (iii) promptly from time to time after the occurrence of an event
required to be therein reported, such other reports on Form 8-K (or any
successor or comparable form) containing the information required to be
contained therein (or required in any successor or comparable form);
provided, however, that the Company shall not be in default of the
provisions of this Section 1008(1) for any failure to file reports with the
Commission solely by the refusal of the Commission to accept the same for
filing. Each of the financial statements contained in such reports shall be
prepared in accordance with GAAP.
(2) The Company's obligations under this Section 1008 will be deemed
satisfied to the extent the Company provides the Trustee with a sufficient
number of annual reports, information, documents and reports for the
Trustee to provide or make available such annual reports, information,
documents and reports to the Holders. The Trustee, at the Company's
expense and written direction, shall promptly mail copies of all such
annual reports, information, documents and other reports provided to the
Trustee pursuant to Section 1008(1) hereof to the Holders at their
addresses appearing in the Security Register.
(3) Whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability and make such
information available to securities analysts and prospective investors upon
request.
(4) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information which the Trustee
may be required to deliver to the Holders under this Section 1008.
(5) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 1009. Statement as to Compliance. The Company shall deliver to the
--------------------------
Trustee, within 135 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture verified in the case of
conditions precedent compliance with which is subject to verification by
accountants by the certificate or opinion of an accountant and, in the event of
any noncompliance, specifying
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such noncompliance and the nature and status thereof. For purposes of this
Section 1009, such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
SECTION 1010. Additional Amounts. If any Securities of a series provide
------------------
for the payment of Additional Amounts, the Company covenants and agrees for the
benefit of the Holders of Securities of such series that it shall pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
clause (1) of Section 502, the payment of the principal of or of any premium,
Make-Whole Amount or interest on, or in respect of, any Security of any series
or payment of any coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof in which such express mention is
not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to Securities of
such series (or if the Securities of such series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or Make-Whole Amount or interest, if there has been any change with
respect to the matters set forth in the below-mentioned Company Certificate, the
Company shall furnish the Trustee and the principal Paying Agent or Paying
Agents, if other than the Trustee, with a Company Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or Make-Whole Amount or interest on the Securities of such
series shall be made to Holders of Securities of such series or any coupons
appertaining thereto who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of or within the series. If any such withholding is required,
then such Company Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities of such
series or any coupons appertaining thereto and the Company shall pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of such series or any coupons appertaining thereto
until it has received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of such series
or any coupons appertaining thereto without withholding or deductions until
otherwise advised. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or
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expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them or
in reliance on any Company Certificate furnished pursuant to this Section or in
reliance on the Company's not furnishing such a Company Certificate.
SECTION 1011. Waiver of Certain Covenants. The Company may omit in any
---------------------------
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1008, inclusive, and with any other term, provision or
condition with respect to the Securities of any series specified in accordance
with Section 301 (except any such term, provision or condition which could not
be amended without the consent of all Holders of Securities of such series
pursuant to Section 902), if before or after the time for such compliance the
Holders of at least a majority in principal amount of all outstanding Securities
of such series, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which are
------------------------
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
-------------------------------------
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 30 days
prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with a
Company Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less
-------------------------------------------------
than all the Securities of any series issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee deems fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of such
series or any integral
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multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
such series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given in
--------------------
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice which is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, on surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable on each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after such date;
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(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons appertaining thereto maturing subsequent to the
date fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
the redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made; and
(10) the CUSIP number of such Security, if any, provided that neither
--------
the Company nor the Trustee shall have any responsibility for any such
CUSIP number.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one Business Day prior
---------------------------
to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, which it may
not do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay on
the Redemption Date the Redemption Price of, and (except if the Redemption Date
is an Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on such date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption
-------------------------------------
having been given as provided above, the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company defaults in the payment of the
Redemption Price and accrued interest) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons
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for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with such notice, together with any
coupons appertaining thereto maturing after the Redemption Date, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that installments
-------- -------
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided, further, that,
-------- -------
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption is not accompanied by all
coupons appertaining thereto maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security surrenders to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction has been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
-------- -------
by a coupon shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of such coupon.
If any Security called for redemption is not so paid upon surrender thereof
for redemption, the principal (and premium or Make-Whole Amount, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part. Any Security which is to be
---------------------------
redeemed only in part (pursuant to the provisions of this Article or of Article
Twelve) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing and
accompanied by appropriate evidence of genuineness and authority) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
------------------------
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
-----------------
fund payment," and any payment in excess of such minimum amount provided for by
- ------------
the terms of such Securities of any series is herein referred to as an "optional
--------
sinking fund payment." If provided for by the terms of any Securities of any
- --------------------
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any mandatory sinking
fund with respect to the Securities of a series, (i) deliver Outstanding
Securities of such series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto, and (ii) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Company, provided that such Securities so delivered or applied as a credit have
--------
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
-----------------------------------------
60 days prior to each sinking fund payment date for Securities of any series,
the Company shall deliver to the Trustee a Company Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for such series
pursuant to the terms of such series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of such series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and shall also deliver to the Trustee
any Securities to be so delivered and credited. If such Company Certificate
specifies an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed on such sinking fund
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payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
------------------------
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that at least one Business Day prior to
the Repayment Date it shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as it own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date is an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities), not earlier than 60 days nor later than 30 days prior to the
Repayment Date, (i) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company in the United States setting forth the name
of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number, if any, or a
description of the tenor and terms of the Security, a statement that the option
to elect repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter;
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provided, however, that such telegram, telex, facsimile transmission or letter
- -------- -------
shall only be effective if such Security and form duly completed are received by
the Trustee by such fifth Business Day. If less than the entire principal amount
of such Security is to be repaid in accordance with the terms of such Security,
the principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered which is not to be
repaid, must be specified. The principal amount of any Security providing for
prepayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of or within the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
- -------
the Holders thereof have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company defaults in the payment of
such Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with such provisions, together with any coupons appertaining
thereto maturing after the Repayment Date, the principal amount of such security
so to be repaid shall be paid by the Company, together with accrued interest, if
any, to the Repayment Date; provided, however, that coupons whose Stated
-------- -------
Maturity is on or prior to the Repayment Date shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and provided, further, that, in the
-------- -------
case of Registered Securities, installments of interest, if any, whose Stated
Maturity is on or prior to the Repayment Date shall be payable (but without
interest thereon, unless the Company defaults in the payment thereof) to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment is not accompanied by
all coupons appertaining thereto maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security surrenders to the Trustee or any Paying
Agent any such missing coupon in respect of which a deduction has been made as
provided in the preceding sentence,
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such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by a coupon shall be payable only at an
- -------
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of such coupon.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
- ---------------------------------
made for either or both of (i) defeasance of the Securities of or within a
series under Section 1402 or (ii) covenant defeasance of the Securities of or
within a series under Section 1403 to be applicable to the Securities of any
series, then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining thereto, elect to
defease such Outstanding Securities and any coupons appertaining thereto
pursuant to Section 1402 (if applicable) or Section 1403 (if applicable) upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of
------------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
----------
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed "Outstanding" only for
the purposes of Section 1405 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar
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as such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium or Make-Whole
Amount, if any, on) and interest and Additional Amounts, if any, on such
Securities and any coupons appertaining thereto when such payments are due; (ii)
the Company's obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1010; (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder; and (iv) this
Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the
-------------------
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Sections 1004 to 1008, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
--------
defeasance"), and such Securities and any coupons appertaining thereto shall
- ----------
thereafter be deemed not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 to 1008, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under clause (4) or (9) of Section 501 or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company has irrevocably deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section
607 who shall agree to comply with the provisions of this Article Fourteen
applicable to it) funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities and any coupons
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appertaining thereto: (i) an amount in such currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (ii) Government Obligations applicable to
such Securities and any coupons appertaining thereto (determined on the
basis of the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium or Make-
Whole Amount, if any, on) and interest and Additional Amounts, if any, on
such Securities and any coupons appertaining thereto, money in an amount,
or (iii) a combination thereof in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (A) the principal of (and premium
or Make-Whole Amount, if any, on) and interest and Additional Amounts, if
any, on such Outstanding Securities and any coupons appertaining thereto on
the Stated Maturity of such principal or installment of principal or
interest and (B) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any coupons
appertaining thereto, provided that the Trustee has been irrevocably
--------
instructed to apply such money or the proceeds of such Government
Obligations to such payments with respect to such Securities. Before such a
deposit, the Company may give to the Trustee, in accordance with Section
1102, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms of the
Securities of such series and Article Eleven, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound (and shall not cause the Trustee to have a
conflicting interest pursuant to Section 310(b) of the Trust Indenture Act
with respect to any Security of the Company).
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto has occurred and is continuing on the
date of such deposit or, insofar as clauses (7) and (8) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
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(d) In the case of an election under Section 1402, the Company has
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company has delivered to the Trustee a Company Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1402 or the covenant defeasance under Section 1403
(as the case may be) have been complied with and an Opinion of Counsel to
the effect that either (i) as a result of a deposit pursuant to paragraph
(a) above and the related exercise of the Company's option under Section
1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Company with
respect to the trust funds representing such deposit or by the Trustee for
such trust funds or (ii) all necessary registrations under such Act have
been effected.
(g) After the 91st day following the deposit, the trust funds will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
- -------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee) pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee
or such other qualifying trustee, in accordance with the provisions of such
Securities and any coupons
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appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee or such other qualifying trustee may determine, to the Holders of
such Securities and any coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium or Make-Whole Amount, if
any) and interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (i) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency, currency unit or composite currency other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security or (ii) a Conversion Event occurs in respect of the currency, currency
unit or composite currency in which the deposit pursuant to Section 1404(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any, on), and interest and Additional Amounts, if any, on such
Security as the same become due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency, currency
unit or composite currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable market exchange rate
for such currency, currency unit or composite currency in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency, currency unit or composite currency in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee or
such other qualifying trustee shall deliver or pay to the Company, from time to
time upon Company Request, any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee or such other qualifying trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
-----------------------------------------
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in the city of Boston,
Massachusetts, as the Trustee determines. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series have requested the Trustee to
call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee has not made the first publication of the notice of such
meeting within 21 days after receipt of such request or does not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in the city of Boston, Massachusetts, for such meeting and
may call such meeting for such purposes by giving notice thereof as
provided in paragraph (a) above.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
------------------------------------
vote at any meeting of Holders of Securities of any series, a Person shall be
(i) a Holder of one or more Outstanding Securities of such series or (ii) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series are the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel,
and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority
--------------
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
-------- -------
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be
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given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of such series; provided,
--------
however, that, except as limited by the proviso to Section 902, any resolution
- -------
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and any coupons
appertaining thereto, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series;
(1) there shall be no minimum quorum requirement for such meeting;
and
(2) the principal amount of the Outstanding Securities of such series
which vote in favor of such request, demand, authorization, direction,
notice, consent, waiver
82
<PAGE>
or other action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or other
action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
- --------
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
deems appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting has been called by
the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of or within the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
-------- -------
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
83
<PAGE>
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote on
-----------------------------------------------
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and series 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 such record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the fact, setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in Section 1502
and, if applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any request, demand,
-----------------------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Holders of any or all series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Article
Six) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to Article Six,
---------------------------------
the execution of any instrument by a Holder or his agent or proxy may be proved
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee.
84
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ JEFFREY A. KLOPF
--------------------------------------
Jeffrey A. Klopf
Senior Vice President and Secretary
Attest:
/s/ MARK W. PEARSON
- -----------------------------
Mark W. Pearson
Vice President
STATE STREET BANK AND TRUST COMPANY,
As Trustee
By: /s/ ANDREW M. SINASKY
--------------------------------------
Andrew M. Sinasky
Assistant Vice President
Attest:
/s/ LORI L. LAPENTIS
- -----------------------------
Lori L. Lapentis
Assistant Secretary
85
<PAGE>
STATE OF NEW MEXICO )
) ss:
COUNTY OF SANTA FE )
On the 17th day of November, 1998, before me personally came Jeffrey A.
Klopf, to me known, who, being by me duly sworn, did depose and say that he
resides at 707 Joaquin Lane, that he is a Senior Vice President and Secretary of
Security Capital Group Incorporated, one of the entities described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the Board of Directors of such entitiy.
[Notarial Seal]
/s/ LISA M. VIGIL
--------------------------------------
Notary Public
Commission Expires: February 20, 2001
STATE OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On the 16th day of November, 1998, before me personally came Andrew M.
Sinasky, to me known, who, being by me duly sworn, did depose and say that he
resides at Holden, Mass, that he is an Assistant Vice President of State Street
Bank and Trust Company, one of the entities described in and which executed the
foregoing instrument, and that he signed his name thereto by authority of the
Board of Directors of such entity.
[Notarial Seal]
/s/ ROSE MARIE MOGAURO
------------------------------------
Notary Public
Commission Expires: January 14, 2005
86
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) which are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) which are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise Security Capital Group Incorporated or its agent that such financial
institution will provide a certificate within a reasonable time stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by a financial institution for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, such financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), certifies that it has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not
<PAGE>
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________ ___, 19___
[To be dated no earlier than the 15th day prior
to the earlier of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
_________________________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
which are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States persons(s) which are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Security
Capital Group Incorporated or its agent that such financial institution will
provide a certificate within a reasonable time stating that it agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by a financial institution for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and that such financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations
<PAGE>
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied on
as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________ ___, 19___
[To be dated no earlier than the earlier of
the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange
Date, as applicable]
[Morgan Guaranty Trust Company of New
York, Brussels Office,] as Operator of
the Euroclear System [Cedel S.A.]
By:____________________________________
<PAGE>
Board Resolution Pursuant to
Section 301 of the Indenture
----------------------------
Pursuant to Section 301 of the Indenture dated as of November 16, 1998 (the
"Indenture") between Security Capital Group Incorporated (the "Company") and
--------- -------
State Street Bank and Trust Company (the "Trustee"), the undersigned on behalf
-------
of the Company and in their respective capacities indicated, hereby certify that
we have examined resolutions duly adopted at a meeting of the Board of Directors
of the Company on September 23, 1998. Acting pursuant to such Board resolutions,
the undersigned hereby establish a series of Securities (the "Notes") by means
-----
of this Board Resolution, in accordance with the provisions of Section 301 of
the Indenture:
1. The Company desires, for its corporate purposes, to create and issue
from time to time under and in accordance with the provisions of the
Indenture, up to $200 million principal amount of Securities to be
known as its Medium-Term Notes, Series A (the "Medium-Term Notes") and
-----------------
to add to the covenants of the Company contained in the Indenture for
the benefit of the Holders of the Medium-Term Notes.
2. The maximum aggregate principal amount of the Notes which may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of, transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 906, 1107 or 1405 of the Indenture and except for any Notes which
pursuant to Section 303 are deemed never to have been authenticated
and delivered) is $200 million.
3. Solely for the benefit of the Holders of the Notes, the following
shall be additions to the
(1) covenants set forth in Article Ten of the Indenture:
SECTION 1012. Limitations on Indebtedness. The Company will
---------------------------
not, and will not permit any of its Wholly Owned Subsidiaries to,
directly or indirectly, Incur any Indebtedness (including Acquired
Indebtedness), if, immediately after such Indebtedness is Incurred (i)
the total aggregate Indebtedness of the Company and its Wholly Owned
Subsidiaries exceeds 50% of the Adjusted Total Assets of the Company
and its Wholly Owned Subsidiaries; or (ii) the Fixed Charge Coverage
Ratio for the Company and its Wholly Owned Subsidiaries for the most
recently ended four fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is Incurred would have been less
<PAGE>
than 1.5 to 1.0, determined on a pro forma basis as if such
Indebtedness had been incurred on the first day of such four-quarter
period.
SECTION 1013. Required Minimum Consolidated Tangible Net Worth.
------------------------------------------------
The Company will not at any time permit its Consolidated Tangible Net
Worth to be less than $1,500,000,000.
SECTION 1014. Limitations on Liens. The Company will not, and
--------------------
will not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or suffer to exist any Lien (other than
Permitted Liens) which secures obligations under any Indebtedness of
the Company or any of its Wholly Owned Subsidiaries on any asset now
owned or hereafter acquired by the Company or any of its Subsidiaries,
or any income or profits therefrom, or assign or convey any right to
receive income therefrom.
SECTION 1015. Restrictions on Lines of Business. The Company
---------------------------------
will not, and will not permit any of its Subsidiaries to, make
Investments in any business other than the business conducted by the
Company and its Subsidiaries on the Issue Date and any other business
related to, or servicing, the real estate industry unless the
aggregate amount of such Investments is less than 10% of the
Consolidated Assets of the Company.
(2) definitions set forth in Article One of the Indenture
"Acquired Indebtedness" means, with respect to any specified
---------------------
Person, (i) Indebtedness of any other Person existing at the time such
other Person is merged with or into such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into such
specified Person, and (ii) Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person.
"Adjusted Fixed Charges" means, with respect to any Person for
----------------------
any period, the sum, without duplication, of the total amount of
accrued or paid interest (including, without limitation, interest
expense attributable to Capitalized Lease Obligations, but excluding
amortization of original issue discount on any Indebtedness, the
interest portion of any deferred payment obligation and non-cash
interest which is payable in kind with additional Indebtedness and
dividend payments on any series of Disqualified Stock) with regard to
Indebtedness of such Person and its Wholly Owned Subsidiaries for such
period.
"Adjusted Net Income" means, with respect to any Person for any
-------------------
period, the aggregate Net Income of such Person for such period,
provided that (i) amortization of original issue discount on any
Indebtedness shall be
2
<PAGE>
excluded; (ii) the Net Income of any Person which is not a Wholly
Owned Subsidiary or which is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or other distributions paid in cash to such Person; (iii)
the Net Income attributable to any Person shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Person to the Company is not at the date of
determination permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Person or its shareholders;
and (iv) the cumulative effect of any change in accounting principles
shall be excluded.
"Adjusted Total Assets" means, with respect to any Person as of
---------------------
any date, the sum, without duplication, of (i) such Person's cash,
(ii) the Market Value of Publicly Traded Securities owned by such
Person and (iii) the net book value of all other assets of such
Person.
"Capital Lease Obligation" means, at the time any determination
------------------------
thereof is to be made, the amount of the liability in respect of a
capital lease which would at such time be required to be capitalized
on a balance sheet in accordance with GAAP.
"Capital Management Clients" means a Person for whom the Company
--------------------------
or any Subsidiary provides investment management or investment
advisory services pursuant to any contract or agreement or series of
contracts or agreements.
"Capital Management Fees" means, with respect to any Person and
-----------------------
for any period, fees accrued to such Person from such Person's Capital
Management Clients calculated in relation to the assets under
management for each such Client; provided that neither performance
fees nor fees (or any portion thereof) which ultimately inure to the
benefit of a third party shall be included in the calculation of the
Capital Management Fees.
"Capital Market Clients" means a Person for whom the Company or
----------------------
any Subsidiary provides investment banking, placement agent,
underwriting, financial or strategic consulting, or similar services.
"Capital Market Fees" means, with respect to any Person and for
-------------------
any period, fees accrued to such Person from such Person's Capital
Market Clients for services provided; provided that neither
performance fees nor fees (or any portion thereof) which ultimately
inure to the benefit of a third party shall be included in the
calculation of the Capital Market Fees.
3
<PAGE>
"Capital Stock" means (i) in the case of a corporation, corporate
-------------
stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, (iii) in the case of a
partnership, partnership interests (whether general or limited) and
(iv) any other interest or participation which confers on a Person the
right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Flow" means, with respect to any Person for any period, the
---------
Adjusted Net Income of such Person for such period plus (i) provisions
for taxes based on income or profits of such Person for such period,
to the extent such provisions for taxes were included in computing
Adjusted Net Income, plus (ii) Adjusted Fixed Charges of such Person
for such period, to the extent such Adjusted Fixed Charges were
deducted in computing Adjusted Net Income, plus (iii) depreciation and
amortization of such Person for such period, to the extent that such
charges were deducted in computing Adjusted Net Income.
"Consolidated Assets" means, with respect to any Person at any
-------------------
date, the consolidated assets of such Person at such date determined
in accordance with GAAP.
"Consolidated Subsidiary" means, with respect to any Person, at
-----------------------
any date, any Subsidiary the accounts of which would be consolidated
with those of such Person in its consolidated financial statements in
accordance with GAAP if such statements were prepared as of such date.
"Consolidated Tangible Net Worth" means, with respect to any
-------------------------------
Person as of any date, the consolidated stockholders' equity of such
Person and its Consolidated Subsidiaries less their consolidated
Intangible Assets (to the extent reflected in determining consolidated
stockholders' equity), and excluding the cumulative effect of any
change in accounting principles.
"Disqualified Stock" means Capital Stock which, by its terms (or
------------------
by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole
or in part, on or prior to the date on which the Securities of the
relevant series mature.
"Equity Interests" means Capital Stock and all warrants, options
----------------
or other rights to acquire Capital Stock (but excluding any debt
security which is convertible into, or exchangeable for, Capital
Stock).
4
<PAGE>
"Fixed Charge Coverage Ratio" means, with respect to any Person
---------------------------
for any period, the ratio of the Cash Flow of such Person for such
period to the Adjusted Fixed Charges of such Person for such period.
If a Person Incurs or redeems any Indebtedness (other than revolving
credit borrowings) during or after the period for which the Fixed
Charge Coverage Ratio is being calculated, but prior to the date on
which the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such Incurrence
or redemption, as if the same had occurred on the first day of such
period. In addition, for purposes of making the computation referred
to above, (i) acquisitions which have been made by the Person,
including through mergers or consolidations and including any related
financing transactions, during or after the period, but prior to the
Calculation Date shall be deemed to have occurred on the first day of
the period for which the Fixed Charge Coverage Ratio is being
calculated, (ii) the Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be
excluded, (iii) the interest expense attributable to any Indebtedness
(whether existing or being Incurred) bearing a floating interest rate
shall be computed as if the rate in effect on the Calculation Date had
been the applicable rate for the entire period, and (iv) the Adjusted
Fixed Charges attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the
extent that the obligations giving rise to such Adjusted Fixed Charges
will not be obligations of the Person following the Calculation Date.
"Guarantee" means a guarantee (other than by endorsement of
---------
negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Incurs" (including, with correlative meanings, the term
------
"Incurrence") means, with respect to any Indebtedness, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to such Indebtedness
(including Acquired Indebtedness).
"Indebtedness" means, with respect to any Person at any date of
------------
determination (without duplication), (i) all indebtedness of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit
or bankers' acceptance or other similar instruments (or reimbursement
obligations with respect thereto), (iv) all
5
<PAGE>
obligations of such Person to pay the deferred purchase price of
property or services, except Trade Payables, (v) all obligations of
such Person as lessee under Capital Lease Obligations, (vi) all
Indebtedness of others secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided
that, for purposes of determining the amount of any Indebtedness of
the type described in this clause, if recourse with respect to such
Indebtedness is limited to such asset, the amount of such Indebtedness
shall be limited to the lesser of the fair market value of such asset
or the amount of such Indebtedness, (vii) all Indebtedness of others
Guaranteed by such Person to the extent such Indebtedness is
Guaranteed by such Person, (viii) all Disqualified Stock valued at the
greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends and (ix) to the extent not otherwise
included in this definition, all obligations of such Person under
Hedging Obligations.
"Intangible Assets" means, with respect to any Person, the
-----------------
intangible assets of that Person determined in accordance with GAAP.
"Investments" means, with respect to any Person, all investments
-----------
by such Person in other Persons (including Affiliates) in the forms of
direct or indirect loans (including Guarantees of Indebtedness or
other obligations), advances or capital contributions, purchases or
other acquisitions for consideration of Indebtedness, Equity Interests
or other securities and all other items which are or would be
classified as investments on a balance sheet prepared in accordance
with GAAP.
"Issue Date" means the original issue date of the Securities.
----------
"Lien" means, with respect to any asset, any mortgage, lien,
----
pledge, charge, security interest or encumbrance of any kind in
respect of such asset given to secure Indebtedness, whether or not
filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, pledge,
charge or security interest).
"Market Value" means, with respect to a Publicly Traded Security
------------
and on the date of determination thereof, (i) if such Publicly Traded
Security is listed on the New York Stock Exchange, the American Stock
Exchange, or some other principal national securities exchange in the
United States of America, the reported last sale price of a unit of
such Publicly Traded Security regular way on a given day, or, in case
no such sale takes place on such day,
6
<PAGE>
the average of the reported closing bid and asked prices regular way,
in each case on the New York Stock Exchange Composite Tape, the
American Stock Exchange Composite Tape or the principal national
securities exchange in the United States of America on which such
Publicly Traded Security is listed or admitted to trading, as
applicable, (ii) if such Publicly Traded Security is not listed or
admitted to trading on any national securities exchange in the United
States of America, but prices for such Publicly Traded Security are
disseminated by means of an automated quotation system by the National
Association of Securities Dealers, Inc., the closing sales price, or
if there is no closing sales price, the average of the closing bid and
asked prices, in the automated quotation system, or (iii) with respect
to a Publicly Traded Security listed on a principal national
securities exchange in Luxembourg, Amsterdam or other European
country, the price of such Publicly Traded Security as reported on
such exchange by the most widely recognized reporting method
customarily relied upon by financial institutions in such country and
if such Publicly Traded Security is listed on more than one such
exchange, the principal securities exchange on which such Publicly
Traded Security is listed. Any determination of the "Market Value" of
a Publicly Traded Security pursuant to this definition shall be based
on the assumption that offers of such Publicly Traded Security are
exempt from registration under the Securities Act.
"Net Income" of any Person for any period means the net income
----------
(loss) of such Person for such period, determined in accordance with
GAAP, excluding, (i) any gain or loss, together with any related
provision for taxes on such gain or loss, realized in connection with
(a) any sale, lease, conveyance or other disposition of any Strategic
Investments (including, without limitation, dispositions pursuant to
sale and leaseback transactions) by such Person, (b) the disposition
of any securities (other than Portfolio Securities) by such Person or
(c) the extinguishment of any Indebtedness of such Person; (ii) any
extraordinary or nonrecurring gain or loss, together with any related
provision for taxes on such extraordinary or nonrecurring gain or
loss; and (iii) any unrealized gain or loss caused by the increase or
decrease in the Market Value of any Publicly Traded Security held,
directly or indirectly, by that Person. In addition, for the
calculation of Net Income for any Person for any period, (i) the
Capital Management Fees based on assets under management accruing to
such Person for such period shall be calculated as if the fees
accruing and assets under management on the last day of such period
(or the closest practicable date of determination) were the fees
accruing and assets under management as of the beginning of such
period; (ii) the Capital Market Fees accruing to such Person for such
period shall be calculated as if the amount of such fees accrued
during such period was equal to the amount of such fees accrued during
the six month period immediately preceding the last day of such period
(or the closest practicable date of determination), adjusted for the
7
<PAGE>
duration of such period; and (iii) the dividend rates and interest
rates in effect with respect to payments accruing to such Person from
its investees as of the last day of such period (or the closest
practicable date of determination) shall be deemed to have been in
effect as of the beginning of such period.
"Non-Recourse" to a Person as applied to any Indebtedness (or
------------
portion thereof) means that such Person is not directly or indirectly
liable to make any payments with respect to such Indebtedness (or
portion thereof) and that no Guarantee of such Indebtedness (or
portion thereof) has been made by such Person.
"Permitted Liens" means (i) Liens on real property securing
---------------
Indebtedness which is Non-Recourse to the Company or any of its
Subsidiaries; or (ii) Liens on any asset securing Indebtedness (other
than Indebtedness referred to in clause (i) above), provided that,
after giving effect to the Incurrence of such Indebtedness (a) the
aggregate principal amount of Indebtedness secured pursuant to this
clause (ii) is less than 10% of the Total Capitalization of the
Company and its Consolidated Subsidiaries and (b) the aggregate net
book value of the assets of the Company and its Subsidiaries securing
such Indebtedness shall not be greater than 200% of the principal
amount of such secured Indebtedness. For purposes of the definition of
Permitted Lien, the aggregate principal amount of Indebtedness shall
mean the principal amount of such Indebtedness at maturity.
"Portfolio Securities" means Securities (a) issued by a fund or
--------------------
company (an "Investment Company") either (i) registered under the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission promulgated thereunder (the "Investment
Company Act"), or (ii) which makes passive investments in companies or
funds in which the Investment Company does not have representation on
the board of directors or similar body or participate on a regular
basis in the management ("Portfolio Investees") and which is exempt
from registration under the Investment Company Act or (b) issued by
Portfolio Investees.
"Publicly Traded Security" means a security which is listed on
------------------------
the New York Stock Exchange, the American Stock Exchange or any other
principal national securities exchange in the United States,
Luxembourg, Amsterdam or other European country or whose prices are
disseminated by means of an automated quotation system by the National
Association of Securities Dealers, Inc.
As used in this definition only, "security" has the meaning given
that term in Article 8 of the Uniform Commercial Code.
8
<PAGE>
"Strategic Investment" of any specified Person means any other
--------------------
Person in which an Investment has been made by the specified Person,
other than Portfolio Securities, where either (a) the undepreciated
book value, or (b) if the Strategic Investment is a Publicly Traded
Security, the Market Value of the Investment exceeds $100 million.
"Total Capitalization" means, with respect to any Person as of
--------------------
any date, the consolidated long-term Indebtedness and consolidated
stockholders' equity of such Person and its Consolidated Subsidiaries
less their consolidated Intangible Assets (to the extent reflected in
determining consolidated stockholders' equity), all determined as of
such date in accordance with GAAP, and excluding the cumulative effect
of a change in accounting principles.
"Trade Payables" means, with respect to any Person, (i) any
--------------
accounts payable or any other Indebtedness or monetary obligation to
trade creditors created, assumed or Guaranteed by such Person arising
in the ordinary course of business in connection with the acquisition
of goods or services, (ii) obligations Incurred in the ordinary course
to pay the purchase price of securities so long as such obligations
are paid within customary settlement periods and (iii) obligations to
purchase securities pursuant to subscription or stock purchase
agreements in the ordinary course of business. Notwithstanding the
foregoing, for purposes of Section 1013, accounts payables (other than
deferred compensation) of the Company in excess of 3.0% of the
undepreciated book value (determined in accordance with GAAP) of the
assets of the Company at any time outstanding shall be treated as
Indebtedness to the extent of such excess.
Wholly Owned Subsidiary" means a Subsidiary of any Person all of
-----------------------
the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares or minimal interests issued
to other Persons to satisfy legal requirements) are at the time owned
by such Person or by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of
such Person.
4. Solely for the benefit of the Holders of the Notes, the following
shall be an altered and restated Section 801 of the Indenture:
SECTION 801 Consolidations and Mergers of Company and Sales,
------------------------------------------------
Leases and Conveyances. The Company will not consolidate or merge
----------------------
with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets in one
or more related transactions, to another Person unless (i) the
surviving Person or the Person formed by or surviving such
9
<PAGE>
consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (the "Surviving Entity") is a corporation
organized or existing under the laws of the United States, any state
thereof or the District of Columbia; (ii) the Surviving Entity assumes
all the obligations, including the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any, on) and
interest and Additional Amounts, if any, on all Securities, according
to their tenor, and the due and punctual performance and observance of
all covenants and conditions, of the Company under the Securities and
the Indenture pursuant to a supplemental Indenture in form reasonably
satisfactory to the Trustee; (iii) immediately before and after giving
effect to such transaction and treating any indebtedness which becomes
an obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of the transaction, no Event
of Default and no event which, after notice or the lapse of time or
both, would become an Event of Default shall have occurred and be
continuing; and (iv) Security Capital or the Surviving Entity will, at
the time of the transaction and after giving pro forma effect thereto
as if the transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to Incur at least $1.00 of
additional Indebtedness pursuant Section 1012 hereof.
10
<PAGE>
Capitalized terms used herein which are defined in the Indenture are used
herein as so defined.
Dated: November 16, 1998
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ JEFFREY A. KLOPF
--------------------
Jeffrey A. Klopf
Senior Vice President and Secretary
By: /s/ MARK W. PEARSON
-------------------
Mark W. Pearson
Vice President
11
<PAGE>
EXHIBIT 4.3
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
THIS NOTE IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
REGISTERED REGISTERED
SECURITY CAPITAL GROUP INCORPORATED
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
FORM OF FACE OF FIXED RATE REGISTERED NOTE
REGISTERED PRINCIPAL AMOUNT
No.: _______ ________________
CUSIP No.: _____________
Unless this Note is presented by an authorized representative of The Depository
Trust Company (55 Water Street, New York, New York) to the issuer or its agent
for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment is
made to Cede & Co., ANY TRANSFER, PLEDGE OR
<PAGE>
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein. *
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," THE "ORIGINAL ISSUE DATE," THE "YIELD
TO MATURITY," AS WELL AS THE METHOD USED TO DETERMINE THE YIELD TO MATURITY
WHERE THERE IS A SHORT ACCRUAL PERIOD AND THE AMOUNT OF OID ALLOCABLE TO SUCH
SHORT ACCRUAL PERIOD WILL BE SET FORTH BELOW. THE CALCULATION OF THE AMOUNT OF
OID UPON (A) OPTIONAL REDEMPTION OR (B) DECLARATION OF ACCELERATION IS DISCUSSED
ON THE REVERSE HEREOF.
ISSUE PRICE: OPTIONAL REPAYMENT
DATE(S):
ORIGINAL ISSUE DATE:
EXCHANGE RATE AGENT:
STATED MATURITY:
AMORTIZING SECURITY:
[ ] YES [ ] NO
SPECIFIED CURRENCY:
AUTHORIZED DENOMINATIONS: AMORTIZATION FORMULA:
INTEREST RATE: AMORTIZATION PAYMENT
DATE(S):
INTEREST PAYMENT DATES:
INTEREST PAYMENT PERIODS:
ORIGINAL ISSUE DISCOUNT SECURITY:
[ ] YES [ ] NO
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD OID:
OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
____________________
* Applies only if this Note is a Registered Global Security.
-2-
<PAGE>
ADDENDUM ATTACHED:
[ ] YES [ ] NO
OPTIONAL REDEMPTION:
[ ] YES [ ] NO
INITIAL REDEMPTION DATE:
REDEMPTION PRICE: [ ] 100%
of the Principal Amount plus a
Make-Whole Premium or [ ]
Initially ------ % of Principal
Amount and declining by ------ %
of the Principal Amount on each
anniversary of the Initial
Redemption Date until the
Redemption Price is 100% of the
Principal Amount.
OPTIONAL EXTENSIONS OF
MATURITY: [ ] YES [ ] NO
EXTENSION PERIOD:
NUMBER OF EXTENSION PERIODS:
FINAL MATURITY DATE:
INDEXED NOTE:
[ ] YES [ ] NO
REFERENCE INDEX OR RATE:
OTHER/ADDITIONAL PROVISIONS:
-3-
<PAGE>
Security Capital Group Incorporated, a corporation organized and existing
under the laws of the State of Maryland (hereinafter called the "Company," which
term shall include any successor under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ___________________________
____________________ or registered assigns, the principal sum of
__________________________ on the Stated Maturity specified above (except to the
extent redeemed or repaid prior to the Stated Maturity) and to pay interest
thereon at the Interest Rate per annum specified above from the Original Issue
Date specified above until the principal hereof is paid or duly made available
for payment (except as provided below), in arrears monthly, quarterly,
semiannually, or annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Stated Maturity (or any redemption or repayment date); provided,
however, that if the Original Issue Date occurs between a Record Date, as
defined below, and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Original Issue
Date to the registered holder of this Note on the Record Date with respect to
such second Interest Payment Date.
Payment of the principal of this Note, any premium and the interest due at
the Stated Maturity (or any redemption or repayment date), or any prior date on
which the principal or an installment of principal of this Note becomes due and
payable, whether by the declaration of acceleration or otherwise, will be made
in immediately available funds upon presentation and surrender of this Note
(and, with respect to any applicable repayment of this Note, upon presentation
and surrender of this Note and a duly completed election form as contemplated on
the reverse hereof) at the office or agency of such paying agent as the Company
may determine maintained for that purpose in the City of Boston, Commonwealth of
Massachusetts (a "Paying Agent"), or at the office or agency of such other
Paying Agent as the Company may determine; provided, however, that if the
Specified Currency specified above is other than U.S. dollars and such payment
is to be made in the Specified Currency in accordance with the provisions on the
reverse hereof, such payment will be made by wire transfer of immediately
available funds to an account with a bank designated by the holder hereof at
least 15 calendar days prior to Maturity, provided that such bank has
appropriate facilities therefor and that this Note (and, if applicable, a duly
completed repayment election form) is presented and surrendered at the
aforementioned office or agency maintained by the Company in time for the
Trustee to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than
Maturity will be made at the aforementioned office or agency maintained by the
Company or, at the option of the Trustee, by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register
maintained by the Trustee; provided, however, that a holder of U.S. $1,000,000
(or, if the Specified Currency is other than U.S. dollars, the equivalent
thereof in the Specified Currency) or more in aggregate principal amount of
Notes (whether having identical or different terms and provisions) will be
entitled to receive interest payments on any Interest Payment Date other than
Maturity by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less
-4-
<PAGE>
than 15 calendar days prior to such Interest Payment Date. Any such wire
transfer instructions received by the Trustee shall remain in effect until
revoked by such holder.
If the Specified Currency shown above is other than U.S. dollars, payments
of principal of (and premium, if any) and interest on the Notes will be made in
the applicable Specified Currency, except as provided on the reverse hereof.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, and, if so specified on the face hereof, in the Addendum
hereto, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the certificate of authentication hereon has been executed by the
Trustee or its Authenticating Agent, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
-5-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the undersigned officer.
SECURITY CAPITAL GROUP
INCORPORATED
By:_______________________
Attest:
By:__________________________
Name:
Its:
Dated:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
BY:_____________________________
Authorized Officer
<PAGE>
FORM OF REVERSE OF NOTE
GENERAL. This Note is one of a duly authorized issue of Medium-Term Notes
having maturities nine months or more from the date of issue (the "Notes") of
the Company. The Notes are issuable under an Indenture, dated as of November
16, 1998, as supplemented by a Board Resolution dated as of November 16, 1998
(as so supplemented, the "Indenture"), between the Company and State Street Bank
and Trust Company, as trustee (the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Company, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. State Street Bank and Trust Company has been
appointed Authenticating Agent (the "Authenticating Agent," which term includes
any successor authenticating agent) with respect to the Notes, and State Street
Bank and Trust Company at its corporate trust office at Two International Place,
Boston, MA 02110 has been appointed registrar and Paying Agent with respect to
the Notes. The terms of individual Notes may vary with respect to interest
rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Indenture. To the extent not inconsistent herewith, the terms
of the Indenture are hereby incorporated by reference herein.
This Note is unsecured and ranks pari passu with all other unsecured and
unsubordinated indebtedness of the Company (excluding subsidiary debt) for
borrowed money.
PAYMENTS. Interest payments on each Interest Payment Date for this Note
will include accrued interest from and including the Original Issue Date or from
and including the last date in respect of which interest has been paid, as the
case may be, to, but excluding such Interest Payment Dates or the Stated
Maturity (or earlier redemption or repayment date), as the case may be.
Interest payments for this Note will be computed and paid on the basis of a 360-
day year of twelve 30-day months. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date, will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
date 15 days prior to an Interest Payment Date (whether or not a Business Day)
(each such date a "Record Date"); provided, however, that interest payable on
the Stated Maturity (or any redemption or repayment date) will be payable to the
person to whom the principal hereof shall be payable.
In the case where the Interest Payment Date or the Stated Maturity (or any
redemption or repayment date) does not fall on a Business Day, or if this Note
is payable in a Specified Currency other than U.S. dollars, a Business Day in
the country issuing the Specified Currency (or, for ECUs, Brussels), payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Stated Maturity (or any redemption or repayment date), and no interest shall
-7-
<PAGE>
accrue for the period from and after the Interest Payment Date or the Stated
Maturity (or any redemption or repayment date) to such next succeeding Business
Day.
If the Specified Currency shown on the face of this Note is other than U.S.
dollars, payments of principal of (and premium, if any) and interest on the
Notes will be made in the applicable Specified Currency; provided, however, that
payments of principal (and premium, if any) and interest on Notes denominated in
other than U.S. dollars will nevertheless be made in U.S. dollars:
(a) at the option of the holders of the Notes under the procedures
described in the two following paragraphs; and
(b) at the Company's option in the case of imposition of exchange
controls or other circumstances beyond the Company's control.
Except as provided in the next paragraph, if the Specified Currency shown
on the face of this Note is other than U.S. dollars, payments of interest and
principal (and premium, if any) will be made in U.S. dollars if the registered
holder of such Note on the relevant Record Date, or at Maturity, as the case may
be, has transmitted a written request for such payment in U.S. dollars to the
Paying Agent at the office of the Paying Agent on or before such Record Date, or
the date 15 days before Maturity, as the case may be. Such request may be in
writing (mailed or hand delivered) or by cable, or other form of facsimile
transmission. Any such request will remain in effect for any further payments of
interest and principal (and premium, if any) on such Note payable to such
holder, unless such request is revoked on or before the relevant Record Date or
the date 15 days before Maturity, as the case may be.
The U.S. dollar amount to be received by a holder of a Note denominated in
other than U.S. dollars who elects to receive payment in U.S. dollars will be
determined by the exchange rate agent, or any successor thereto (the "Exchange
Rate Agent"), at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable Payment Date, by selecting the indicative
quotations for the Specified Currency appearing at such time on the bank
composite or multi-contributor pages of the Quoting Source (as defined below)
for the first three banks, in descending order of their appearance on a list of
banks to be agreed to by the Company and the Exchange Rate Agent prior to such
second Business Day, which are offering quotes on the Quoting Source. The
Exchange Rate Agent shall select from among the selected quotations the one
which will yield the largest number of U.S. dollars upon conversion from such
Specified Currency. The "Quoting Source" shall mean Reuters Monitor Foreign
Exchange Service, or if the Exchange Rate Agent determines that such service is
not available, Telerate Monitor Foreign Exchange Service. If the Exchange Rate
Agent determines that neither Service is available, the Company and the Exchange
Rate Agent shall agree on a comparable display or other comparable manner of
obtaining quotations and such display or manner shall become the Quoting Source.
-8-
<PAGE>
In the case of a Specified Currency other than ECUs, if (i) fewer than
three bid quotations are available at the time a determination is to be made by
the Exchange Rate Agent pursuant to the preceding paragraph, or (ii) the
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from the
Company that there exist exchange controls or other circumstances beyond the
Company's control rendering such Specified Currency unavailable, then the
Exchange Rate Agent shall, prior to such Payment Date, notify the Company and
the Trustee of the noon buying rate in New York City for cable transfers, in the
Specified Currency indicated in such notice, as certified for customers purposes
by the Federal Reserve Bank of New York (the "Market Exchange Rate") as of such
second Business Day. If the Market Exchange Rate for such date is not then
available, the Exchange Rate Agent shall immediately notify the Company and the
Trustee of the most recently available Market Exchange Rate for such Specified
Currency. In the case of ECUs, if: (i) fewer than three bid quotations are
available at the time a determination is to be made by the Exchange Rate Agent
pursuant to the preceding paragraph, or (ii) the Exchange Rate Agent receives no
later than 12:00 noon, New York City time, on such second Business Day preceding
the applicable Payment Date notice from the Company that (A) there exist
exchange controls or other circumstances beyond the Company's control, rendering
ECUs unavailable or (B) ECUs are no longer used in the European Monetary System,
rendering ECUs unavailable, then the Exchange Rate Agent shall, prior to such
Payment Date, notify the Company and the Trustee of the rate of conversion for
ECUs into U.S. dollars, determined as of such second Business Day on the
following basis: The component currencies of the ECUs for this purpose (the
"Components") shall be the currency amounts that were components of the ECUs as
of the last date on which ECUs were used in the European Monetary System. The
equivalent of ECUs in U.S. dollars shall be calculated by aggregating the U.S.
dollar equivalent of the Components. The U.S. dollar equivalent of each of the
Components shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for the Components, or as otherwise
specified to the Exchange Rate Agent by the Company.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, and such Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company shall be entitled to satisfy its
obligations to the holder of this Note by making such payment in U.S. dollars on
the basis of the most recently available noon-buying rate for cable transfers in
The City of New York, as determined by the Federal Reserve Bank of New York.
Any payment made under such circumstances in U.S. dollars where the required
payment is other than U.S. dollars will not constitute an Event of Default.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit amounts used in or resulting from any such
calculation in respect of the Notes will be rounded to the nearest one-hundredth
of a unit (with five one-thousandths being rounded upward).
-9-
<PAGE>
SINKING FUND. This Note will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with the provisions
of the following two paragraphs, will not be redeemable or subject to repayment
at the option of the holder prior to Maturity.
REDEMPTION. Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Stated Maturity. If the face of this Note
indicates that this Note is subject to optional redemption, this Note will be
redeemable at the Company's option, as a whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination) on and after the Initial Redemption Date set
forth on the face of this Note, on any date prior to the Stated Maturity at a
redemption price (the "Redemption Price"), as specified on the face of this
Note, equal to either (i) the price specified as a percentage of the face amount
to be redeemed plus accrued interest to the Redemption Date (subject to the
right of holders of record on the relevant Record Date to receive interest due
on an Interest Payment Date that is on or prior to the Redemption Date) or (ii)
100% of the principal amount thereof plus accrued interest to the Redemption
Date (subject to the right of holders of record on the relevant Record Date to
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date), plus a Make-Whole Premium, if any.
The "Make-Whole Premium" in respect of this Note is intended to be the
amount, if any, which, when added to the then outstanding principal amount of
this Note, would, if invested on the Redemption Date of this Note in U.S.
Treasury securities with maturities equal to the Remaining Life of this Note,
have a yield to maturity equal to the original yield to maturity of this Note,
based on the initial public offering price of this Note. The amount of the
Make-Whole Premium in respect of the principal amount of this Note will be
calculated by the Company and will be the excess, if any, of (i) the sum of the
present values, as of the Redemption Date of this Note, of (A) the respective
interest payments (exclusive of the amount of accrued interest to the Redemption
Date) on this Note that, but for such redemption, would have been payable on
their respective Interest Payment Dates after such Redemption Date, and (B) the
payment of such principal amount that, but for such redemption, would have been
payable on the Stated Maturity over (ii) the amount of such principal to be
redeemed. Such present values will be determined in accordance with generally
accepted principles of financial analysis by discounting the amounts of such
payments of interest and principal from their respective Stated Maturities to
such Redemption Date at a discount rate equal to the Treasury Yield.
The "Treasury Yield" in respect of this Note shall be determined as of the
date on which notice of redemption of this Note is sent to the holder hereof by
reference to the most recent Federal Reserve Statistical Release H.15(519) (or
successor publication) which has become publicly available not more than two
Business Days prior to such date (or, if such Statistical Release (or successor
publication) is no longer published or no longer contains the applicable data,
to the most recently published issue of The Wall Street Journal (Eastern
-10-
<PAGE>
Edition) published not more than two Business Days prior to such date that
contains such data or, if The Wall Street Journal (Eastern Edition) is no longer
published or no longer contains such data, to any publicly available source of
similar market data), and shall be the most recent weekly average yield on
actively traded U.S. Treasury securities adjusted to a constant maturity equal
to the Remaining Life of this Note and, if applicable, converted to a bond
equivalent yield basis as described below. The "Remaining Life of this Note"
shall equal the number of years from the Redemption Date to the Stated Maturity
of this Note; provided that if the Remaining Life of this Note is not equal to
the constant maturity of a U.S. Treasury security for which a weekly average
yield is specified in the applicable source, then the Remaining Life of this
Note shall be rounded to the nearest one-twelfth of one year and the Treasury
Yield shall be obtained by linear interpolation (computed to the fifth decimal
place (one thousandth of a percentage point) and then rounded to the fourth
decimal place (one hundredth of a percentage point)), after rounding to the
nearest one-twelfth of one year, from the weekly average yields of (a) the
actively traded U.S. Treasury security with a maturity closest to and less than
the Remaining Life of this Note and (b) the actively traded U.S. Treasury
security with a maturity closest to and greater than the Remaining Life of this
Note, except that if the Remaining Life of this Note is less than three months,
the weekly average yield on actively traded U.S. Treasury securities adjusted to
a constant maturity of three months shall be used. The Treasury Yield shall, if
expressed on a yield basis other than that equivalent to a bond equivalent yield
basis, be converted to a bond equivalent yield basis and shall be computed to
the fifth decimal place (one thousandth of a percentage point) and then rounded
to the fourth decimal place (one hundredth of a percentage point).
Notice of redemption will be provided by mailing a notice of such
redemption to each holder by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to the
respective address of each holder as that address appears in the Security
Register. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the presentation and cancellation hereof.
REPAYMENT. Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Stated Maturity. If so indicated on the face of this Note, this Note may be
subject to repayment at the option of the holder on the date or dates, if any,
specified on the face hereof (the "Optional Redemption Date" or "Optional
Redemption Dates") on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of U.S. $1,000 or the minimum Authorized Denomination of the
Specified Currency indicated on the face hereof (provided that any remaining
principal amount hereof shall not be less than the minimum Authorized
Denomination hereof) at the option of the holder hereof at a price equal to 100%
of the principal amount to be repaid, together with interest hereon payable to
the date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, the Company must receive at the corporate trust
office of the Paying Agent in the City of Boston, Commonwealth of Massachusetts
or New York,
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<PAGE>
New York, at least 30 days but not more than 60 days prior to the repayment, (i)
this Note with the form entitled "Option to Elect Repayment" on the reverse
hereof duly completed or (ii) a telegram, facsimile transmission or a letter
from a member of a national securities exchange or a member of the National
Association of Securities Dealers, Inc. (the "NASD") or a commercial bank or
trust company in the United States which must set forth the name of the holder
of this Note, the principal amount of this Note, the principal amount of this
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note to be repaid, together with the
duly completed form entitled "Option to Elect Repayment" on the reverse hereof,
will be received by the Paying Agent not later than the third Business Day after
the date of such telegram, facsimile transmission or letter; provided, that such
telegram, facsimile transmission or a letter from a member of a national
securities exchange or a member of the NASD or a commercial bank or trust
company in the United States shall only be effective if in such case, this Note
and form duly completed are received by the Paying Agent by such third Business
Day. Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new Note or
Notes of like tenor for the amount of the unpaid portion hereof and otherwise
having the same terms as this Note shall be issued in the name of the holder
hereof upon cancellation hereof.
OPTIONAL EXTENSION OF MATURITY. If so specified on the face hereof, the
Stated Maturity of this Note may be extended at the option of the Company for
the period or periods of whole years specified on the face hereof (each an
"Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face hereof. If the Company exercises such option, the Paying
Agent will mail to the holder of this Note not later than 40 calendar days prior
to the old Stated Maturity a notice (the "Extension Notice"), first class
postage prepaid, indicating (a) the election of the Company to extend the
Maturity; (b) the new Stated Maturity; (c) the interest rate applicable to the
Extension Period; and (d) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which, the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the Paying Agent's mailing of the Extension Notice,
the Stated Maturity of this Note shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, this
Note will have the same terms as prior to the mailing of such Notice.
Notwithstanding the foregoing, not later than 10:00 a.m., New York City
time, on the twentieth calendar day prior to the Maturity then in effect (or, if
such day is not a Business Day, not later than 10:00 a.m., New York City time,
on the immediately succeeding Business Day), the Company may, at its option,
revoke the Spread and/or Spread Multiplier provided for in the Extension Notice
and establish a higher interest rate for the Extension Period by causing the
Paying Agent to send notice of such Spread and/or Spread Multiplier to the
holder of such Note by first class mail, postage prepaid, or by such other means
as shall be agreed between the Company and the Paying Agent. Such notice shall
be irrevocable. All Notes with respect to which the Maturity is extended in
accordance with an Extension Notice will bear
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<PAGE>
such Spread and/or Spread Multiplier for the Extension Period, whether or not
tendered for payment.
If the Company extends the Maturity of this Note, the holder will have the
option to require the Company to repay such Note on Maturity then in effect at a
price equal to the principal amount thereof plus all accrued and unpaid interest
to such date. In order to obtain repayment on the old Stated Maturity once the
Company has extended the Maturity hereof, the holder must follow the procedures
set forth for optional repayment, except that the period for delivery of this
Note or notification to the Paying Agent shall be at least 25 but not more than
35 calendar days prior to the old Stated Maturity and except that if holder has
tendered this Note for repayment pursuant to an Extension Notice, the holder
may, by written notice to the Paying Agent, revoke any such tender for repayment
until 3:00 p.m., New York City time, on the twentieth calendar day prior to the
old Stated Maturity (or, if such day is not a Business Day, until 3:00 p.m., New
York City time, on the immediately succeeding Business Day).
INDEXED NOTES. If so stated on the face hereof, the amount of principal,
premium and/or interest payable in respect hereof will be determined with
reference to the price or prices of specific commodities or stocks, or to the
exchange rate of one or more designated currencies (including composite
currencies) relative to an indexed currency or to such other price(s) or
exchange rate(s), as specified on the face hereof.
REGISTRATION OF TRANSFER. State Street Bank and Trust Company has been
appointed registrar for the Notes (the "Registrar," which term includes any
successor registrar appointed by the Company), and the Registrar will maintain
at its office at Two International Place, Boston, MA 02110 a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Registrar by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form approved by the
Registrar and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Registrar shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions for an equal aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Registrar will not be
required to register the transfer of or exchange any Note that has been called
for redemption in whole or in part, or as to which the holder thereof has
elected to cause such Note to be repaid in whole or in part, except the
unredeemed or unpaid portion of Notes being redeemed or repaid in part, or to
register the transfer of or exchange Notes to the extent and during the period
so provided in the Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized denominations of
equal aggregate principal amount having identical terms and provisions. All
such exchanges and transfers of Notes will be free of charge, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form approved by the
Registrar and executed by the registered holder in person or by the holder's
attorney duly authorized in
-13-
<PAGE>
writing. The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results from
such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Registrar, a new Note of like tenor will be issued by the
Company in exchange for the Note so mutilated or defaced, or in lieu of the Note
so destroyed or lost or stolen, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Registrar and the
Company that such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, in denominations of
U.S. $1,000 or any integral multiple of U.S. $1,000 or the minimum Authorized
Denomination. If the Specified Currency shown on the face of this Note is other
than U.S. Dollars, the authorized denominations shall be the amount of the
Specified Currency for such Note equivalent, at the noon buying rate in The City
of New York for cable transfers for such Specified Currency (the "Exchange
Rate") on the sixth Business Day in The City of New York and in the country
issuing such currency (or, for ECUs, Brussels) next preceding the date of issue
of such Note, to U.S. $1,000 (rounded to the nearest 1,000 units of such
Specified Currency) and any greater amount that is an integral multiple of 1,000
units of such Specified Currency.
EVENTS OF DEFAULT. If an Event of Default (as defined in the Indenture)
with respect to the Notes of this series shall occur and be continuing, the
principal of the Notes of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
ORIGINAL ISSUE DISCOUNT NOTES. Notwithstanding anything herein to the
contrary, if this Note is an Original Issue Discount Note, the amount payable in
the event of redemption or repayment prior to the Stated Maturity hereof in lieu
of the principal amount due at the Stated Maturity hereof shall be the Amortized
Face Amount of this Note as of the Redemption Date or the date of repayment, as
the case may be, multiplied by the Redemption Price. The "Amortized Face
Amount" of this Note shall be the amount equal to (a) the Issue Price (as set
forth on the face hereof) plus (b) that portion of the difference between the
Issue Price and the principal amount hereof that has accrued at the Yield to
Maturity (as set forth on the face hereof) (computed in accordance with
generally accepted United States bond yield computation principles using a
constant yield method) at the date as of which the Amortized Face Amount is
calculated but in no event shall the Amortized Face Amount of this Note exceed
its principal amount.
-14-
<PAGE>
The constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as defined
below), corresponds to the shortest period between Interest Payment Dates (with
ratable accruals within a compounding period, a coupon rate equal to the initial
coupon rate applicable to this Note and an assumption that the Maturity of this
Note will not be accelerated). If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
MODIFICATIONS AND WAIVERS; OBLIGATION OF THE COMPANY ABSOLUTE. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No provision of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place, and
rate or formula, and in the coin or currency, herein and in the Indenture
prescribed unless otherwise agreed between the Company and the registered holder
of this Note.
REGISTERED HOLDER TREATED AS OWNER. Prior to due presentment of this Note
for registration of transfer, the Company or any agent of the Company, the
Registrar or the Trustee may treat the holder in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Registrar, the Trustee nor any such agent
shall be affected by notice to the contrary.
NO RECOURSE AGAINST CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement contained in the Indenture or in this Note, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such, or against any past, present or future shareholder, officer
or trustee, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or
-15-
<PAGE>
equitable proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of this Note by the holder hereof and as part of the
consideration for the issue of this Note.
GOVERNING LAW. This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
CUSIP NUMBER. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused "CUSIP"
numbers to be printed on this Note as a convenience to the holders of this Note.
No representation is made as to the correctness or accuracy of such CUSIP
numbers as printed on this Note, and reliance may be placed only on the other
identification numbers printed hereon.
DEFINED TERMS. All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
DEFEASANCE. The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Note.
-16-
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
===========================================
===========================================
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
...............................................................................
the within Security of Security Capital Group Incorporated and hereby does
irrevocably constitute and appoint
........................................................................Attorney
to transfer said Security on the books of the within-named Company with full
power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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<PAGE>
FORM OF OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest to the Repayment Date, to the undersigned, at
___________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof (which shall be increments of U.S. $1,000 (or if the
Specified Currency is other than U.S. dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid:____________________________________________________________________;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):__
_______________________________________________________________________________
Dated: ______________________
NOTICE: The signature on this Option to Elect Repayment must correspond with the
name as written upon the face of the within instrument in every particular
without alteration or enlargement.
-18-
<PAGE>
ADDENDUM
The Notes will be redeemable, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater of (i) 100%
of the principal amount of such Notes, and (ii) as determined by the Quotation
Agent (as defined below), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the date of redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined
below) plus 25 basis points plus, in each case, accrued interest thereon to the
date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity to the
Comparable Treasury Issue (as defined below), assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the Reference Treasury Dealer Quotations (as defined
below) for such redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Quotation Agent" means the Reference Treasury Dealer (as defined
below) appointed by the Company.
"Reference Treasury Dealer" means (i) each of J.P. Morgan Securities
Inc., Goldman, Sachs & Co., Merrill Lynch & Co. and Chase Securities Inc. and
their respective successors; provided, however, that if the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference
Addendum - Page 1
<PAGE>
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Notes to be
redeemed. Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrued on the Notes or
portions thereof called for redemption.
# # #
Addendum - Page 2
<PAGE>
Exhibit 4.4
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
THIS NOTE IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
REGISTERED REGISTERED
SECURITY CAPITAL GROUP INCORPORATED
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
FORM OF FACE OF FLOATING RATE REGISTERED NOTE
REGISTERED PRINCIPAL AMOUNT
No.: _______ ________________
CUSIP No.: _____________
Unless this Note is presented by an authorized representative of The Depository
Trust Company (55 Water Street, New York, New York) to the issuer or its agent
for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment is
made to Cede & Co., ANY TRANSFER, PLEDGE OR
<PAGE>
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein./*/
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", THE "ORIGINAL ISSUE DATE", THE "YIELD
TO MATURITY," AS WELL AS THE METHOD USED TO DETERMINE THE YIELD TO MATURITY
WHERE THERE IS A SHORT ACCRUAL PERIOD AND THE AMOUNT OF OID ALLOCABLE TO SUCH
SHORT ACCRUAL PERIOD WILL BE SET FORTH BELOW. THE CALCULATION OF THE AMOUNT OF
OID UPON (A) OPTIONAL REDEMPTION OR (B) DECLARATION OF ACCELERATION IS DISCUSSED
ON THE REVERSE HEREOF.
INVERSE FLOATING RATE NOTE:
ISSUE PRICE: [ ] YES [ ] NO
ORIGINAL ISSUE DATE: FIXED INTEREST RATE:
STATED MATURITY: OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
SPECIFIED CURRENCY:
OPTIONAL REPAYMENT
BASE RATE: DATE(S):
[ ] Commercial Paper
Rate OPTIONAL REDEMPTION:
[ ] CD Rate [ ] YES [ ] NO
[ ] Federal Funds Rate
[ ] LIBOR: INITIAL REDEMPTION DATE:
[ ] LIBOR REUTERS
PAGE: REDEMPTION PRICE: [ ] 100%
[ ] LIBOR TELERATE
PAGE: of the Principal Amount plus a
Make-Whole Amount or [ ]
[ ] Prime Rate Initially _____% of Principal
[ ] Treasury Rate Amount and declining by _____%
[ ] CMT Rate: of the Principal Amount on each
Designated CMT anniversary of the Initial
Telerate Page: Redemption Date until the
If Telerate Page Redemption Price is 100% of the
7052: Principal Amount.
[ ] Weekly
Average
[ ] Monthly ORIGINAL ISSUE DISCOUNT
Average SECURITY:
[ ] YES [ ] NO
_________________________
/*/ Applies only if this note is a Registered Global Security.
-2-
<PAGE>
Designated CMT TOTAL AMOUNT OF OID:
Maturity Index:
[ ] Eleventh District Cost YIELD TO MATURITY:
of Funds Rate
INITIAL ACCRUAL PERIOD OID:
INITIAL INTEREST RATE:
INDEX MATURITY:
SPREAD (PLUS OR MINUS): AUTHORIZED DENOMINATION:
[ ] $1,000 and integral multiples
SPREAD MULTIPLIER: thereof
[ ] Other:
CALCULATION AGENT: EXCHANGE RATE AGENT:
MAXIMUM INTEREST RATE:
AMORTIZING SECURITY:
MINIMUM INTEREST RATE: [ ] YES [ ] NO
INTEREST RESET PERIOD: AMORTIZATION FORMULA:
INTEREST RESET DATE(S): AMORTIZATION PAYMENT
DATE(S):
INTEREST PAYMENT PERIOD:
ADDENDUM ATTACHED:
INTEREST PAYMENT DATES: [ ] YES [ ] NO
RENEWABLE NOTE:
[ ] YES [ ] NO
FLOATING/FIXED RATE NOTE:
[ ] YES [ ] NO
ELECTION DATE:
FIXED INTEREST RATE
MINIMUM ELECTION DATE NOTICE:
FIXED INTEREST RATE:
COMMENCEMENT DATE:
OPTIONAL EXTENSION OF MAXIMUM ELECTION DATE NOTICE:
MATURITY: [ ] YES [ ] NO
LENGTH OF EXTENSION FINAL MATURITY DATE
PERIOD:
REDEEMABLE:
NUMBER OF EXTENSION [ ] YES [ ] NO
PERIODS:
-3-
<PAGE>
FINAL MATURITY DATE: INITIAL REDEMPTION DATE:
INDEXED NOTE:
[ ] YES [ ] NO
REFERENCE INDEX OR RATE:
OTHER/ADDITIONAL PROVISIONS:
-4-
<PAGE>
Security Capital Group Incorporated, a corporation organized and existing
under the laws of the State of Maryland (hereinafter called the "Company," which
term shall include any successor under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________________________
___________________ or registered assignees, the principal sum of
__________________________ on the Stated Maturity specified above (except to the
extent redeemed or repaid prior to the Stated Maturity) and to pay interest
thereon, from the Original Issue Date specified above at a rate per annum equal
to the Initial Interest Rate specified above until the first Interest Reset Date
next succeeding the Original Issue Date specified above, and thereafter at a
rate per annum determined in accordance with the provisions specified above and
on the reverse hereof or in an Addendum hereto with respect to one or more Base
Rates specified above until the principal hereof is paid or duly made available
for payment. The Company will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Stated Maturity (or any redemption or repayment date); provided,
however, that if the Original Issue Date occurs between a Record Date, as
defined below, and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Original Issue
Date to the registered holder of this Note on the Record Date with respect to
such second Interest Payment Date; and provided, further, that if an Interest
Payment Date or the Stated Maturity or redemption or repayment date would fall
on a day that is not a Business Day (this and certain other capitalized terms
used herein are defined on the reverse of this Note), such Interest Payment
Date, Stated Maturity or redemption or repayment date shall be the following day
that is a Business Day, except that if the Base Rate Specified above is LIBOR
and such next Business Day falls in the next calendar month, the Interest
Payment Date, Stated Maturity or redemption or repayment date shall be the
immediately preceding day that is a Business Day.
Payment of the principal of this Note, any premium and the interest due at
the Stated Maturity (or any redemption or repayment date), or any prior date on
which the principal or an installment of principal of this Note becomes due and
payable, whether by declaration of acceleration or otherwise, will be made in
immediately available funds upon presentation and surrender of this Note (and,
with respect to any applicable repayment of this Note, upon presentation and
surrender of this Note and a duly completed election form as contemplated on the
reverse hereof) at the office or agency of such paying agent as the Company may
determine maintained for that purpose in The City of Boston, Massachusetts (a
"Paying Agent"), or at the office or agency of such other Paying Agent as the
Company may determine; provided, however, that if the Specified Currency
specified above is other than U.S. dollars and such payment is to be made in the
Specified Currency in accordance with the provisions on the reverse hereof, such
payment will be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to Maturity, provided that such bank has appropriate facilities therefor
and that this Note (and, if applicable, a duly completed repayment election
form) is presented and surrendered at the aforementioned office or agency
maintained by the Company in time for
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the Trustee to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than
Maturity will be made at the aforementioned office or agency maintained by the
Company or, at the option of the Trustee, by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register
maintained by the Trustee; provided, however, that a holder of U.S. $1,000,000
(or, if the Specified Currency is other than U.S. dollars, the equivalent
thereof in the Specified Currency) or more in aggregate principal amount of
Notes (whether having identical or different terms and provisions) will be
entitled to receive interest payments on any Interest Payment Date other than
Maturity by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
If the Specified Currency shown above is other than U.S. dollars, payments
of principal of (and premium, if any) and interest on the Notes will be made in
the applicable Specified Currency, except as provided on the reverse hereof.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, and, if so specified on the face hereof, in the Addendum
hereto, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the certificate of authentication hereon has been executed by the
Trustee or its Authenticating Agent, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the undersigned officer.
SECURITY CAPITAL GROUP
INCORPORATED
By:___________________________
Attest:
By:_________________________
Name:
Its:
Dated: _________________, _____
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
BY:________________________
Authorized Officer
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FORM OF REVERSE OF NOTE
GENERAL. This Note is one of a duly authorized issue of Medium-Term Notes
having maturities nine months or more from the date of issue (the "Notes") of
the Company. The Notes are issuable under an Indenture, dated as of November
16, 1998, as supplemented by a Board Resolution dated as of November 16, 1998
(as so supplemented, the "Indenture"), between the Company and State Street Bank
and Trust Company, as trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the Company,
the Trustee and holders of the Notes and the terms upon which the Notes are, and
are to be, authenticated and delivered. State Street Bank and Trust Company has
been appointed Authenticating Agent and Calculation Agent (the "Authenticating
Agent" and "Calculation Agent," respectively, which terms include any successor
authenticating agent or calculation agent, as the case may be) with respect to
the Notes, and State Street Bank and Trust Company at its corporate trust office
at Two International Place, Boston, MA 02110 has been appointed the registrar
and a Paying Agent with respect to the Notes. The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Indenture. To the extent
not inconsistent herewith, the terms of the Indenture are hereby incorporated by
reference herein.
This Note is unsecured and ranks pari passu with all other unsecured and
unsubordinated indebtedness of the Company (excluding subsidiary debt) for
borrowed money.
INTEREST RATE CALCULATIONS. The interest borne by this Note shall be
determined as follows:
(i) Unless designated as a Floating Rate/Fixed Rate Note or an
Inverse Floating Rate Note, this Note will be designated a "Regular
Floating Rate Note" and, except as described below or in an Addendum
hereto, will bear interest at the rate determined by reference to the Base
Rate (i) plus or minus the Spread, if any, and/or (ii) multiplied by the
Spread Multiplier, if any.
(ii) If designated as a Floating Rate/Fixed Rate Note, then, except as
described below or in an Addendum hereto, this Note will initially bear
interest at the rate determined by reference to the Base Rate (i) plus or
minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier,
if any. The interest rate in effect commencing on, and including, the
Fixed Rate Commencement Date to Maturity shall be the Fixed Interest Rate,
if such rate is specified on the face of this Note, or if no such Fixed
Interest Rate is so specified and the Floating Rate/Fixed Rate Note is
still outstanding on such day, the interest rate in effect thereon on the
day immediately preceding the Fixed Rate Commencement Date.
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(iii) If designated as an Inverse Floating Rate Note, then, except as
described below or in an Addendum hereto, this Note will bear interest
equal to the Fixed Interest Rate specified on the face of this Note minus
the rate determined by reference to the Base Rate (i) plus or minus the
Spread, if any, and/or (ii) multiplied by the applicable Spread Multiplier,
if any; provided, however, unless otherwise specified on the face of this
Note or in an Addendum hereto, the interest rate thereon will not be less
than zero.
Commencing with the first Interest Reset Date specified on the face hereof
following the Original Issue Date, the rate at which interest on this Note is
payable shall be reset daily, weekly, monthly, quarterly, semiannually, annually
or otherwise as shown on the face hereof under "Interest Reset Period";
provided, however, that the interest rate in effect from the Original Issue Date
to the first Interest Reset Date specified on the face hereof will be the
Initial Interest Rate. Each such reset rate shall be applicable on and after
the Interest Reset Date to which it relates to but not including the next
succeeding Interest Reset Date or until Maturity, as the case may be. Unless
otherwise specified on the face hereof, the Interest Reset Date will be, if the
interest rate on this Note is to be reset daily, each Business Day; if the
interest rate on this Note is to be reset weekly, Wednesday of each week, unless
the Base Rate of this Note is the Treasury Rate, in which case the Interest
Reset Date will be Tuesday of each week (except that if in any week an auction
of Treasury bills falls on a Tuesday, the Interest Reset Date will be on
Wednesday of that week); if the interest rate on this Note is to be reset
monthly, the third Wednesday of each month; if the interest rate on this Note is
to be reset quarterly, the third Wednesday of March, June, September and
December; if the interest rate on this Note is to be reset semiannually, the
third Wednesday of each of two months specified on the face hereof; and if the
interest rate on this Note is to reset annually, the third Wednesday of the
month specified on the face hereof. If any Interest Reset Date specified on the
face hereof would otherwise be a day that is not a Market Day, such Interest
Reset Date shall be postponed to the next day that is a Market Day, except that
if the rate of interest on this Note shall be determined in accordance with the
provisions of the heading "Determination of LIBOR" below, and such Market Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Market Day. Subject to applicable provisions of law and
except as specified herein, on each Interest Reset Date the rate of interest on
this Note shall be the rate determined in accordance with the provisions of the
applicable heading below. In addition, if the Treasury Rate is an applicable
Base Rate and the Interest Determination Date would otherwise fall on an
Interest Reset Date, then such Interest Reset Date will be postponed to the next
succeeding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date for a
Commercial Paper Rate Note, for a Prime Rate Note, for a CD Rate Note, for a CMT
Rate Note, for a Federal Funds Rate Note and for an Eleventh District Cost of
Funds Rate Note will be the second Market Day preceding such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date for
a LIBOR Note will be the second London Business Day preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset
Date for a Treasury Rate Note will be the day of the week in which such
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Interest Reset Date falls on which Treasury bills would normally be auctioned.
If an auction date shall fall on any Interest Reset Date for a Treasury Rate
Note, then such Interest Reset Date shall instead be the first Market Day
immediately following such auction date.
"Calculation Date" pertaining to any Interest Determination Date will be
the earlier of (i) the tenth calendar day after such Interest Determination
Date, or if, such day is not a Business Day, the next succeeding Business Day or
(ii) the Business Day immediately preceding the applicable Interest Payment Date
or the Stated Maturity, as the case may be.
"Market Day" means: (a) with respect to any Note, any Business Day in The
City of New York and the City of Boston; and (b) with respect to any LIBOR Note,
any Business Day in The City of New York and The City of Boston which is also a
day on which dealings in deposits in U.S. dollars are transacted in the London
interbank market (a "London Business Day").
Determination of Commercial Paper Rate. If the Base Rate specified on the
face hereof is the Commercial Paper Rate, the Commercial Paper Rate with respect
to this Note shall be determined on each Interest Determination Date and shall
be the Money Market Yield (calculated as described below) of the per annum rate
(quoted on a bank discount basis) for the relevant Interest Determination Date
for commercial paper having the specified Index Maturity as published by the
Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication of the Board of
Governors of the Federal Reserve System ("H.15(519)") under the heading
"Commercial Paper--Nonfinancial." If such rate is not published before 3:00
p.m., New York City time, on the relevant Calculation Date, then the Commercial
Paper Rate for such Interest Reset Date shall be the Money Market Yield of such
rate on such Interest Determination Date for commercial paper having the
specified Index Maturity as published by the Federal Reserve Bank of New York on
the Internet, under the heading "Federal Reserve Release--Commercial Paper." If
by 3:00 p.m., New York City time, on such Calculation Date such rate is not yet
published in either H.15(519) or by the Federal Reserve Bank of New York, the
Commercial Paper Rate for such interest Reset Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered per annum rates (quoted on a bank discount basis), as of 11:00 a.m.,
New York City time, on such Interest Determination Date, of three leading
dealers of commercial paper in The City of New York (which may include the
Agents) selected by the Calculation Agent for commercial paper of the specified
Index Maturity placed for a nonfinancial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized rating agency; provided, however,
that if fewer than three dealers selected by the Calculation Agent are quoting
as mentioned in this sentence, the Commercial Paper Rate for such Interest Reset
Date will be the Commercial Paper Rate in effect on such Interest Determination
Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
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<PAGE>
MONEY MARKET YIELD = 100 X 360 X D
-------------------
360 -- (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal and "M" refers to the actual number of
days in the period from the Interest Reset Date to but excluding the day that
numerically corresponds to such Interest Rate Date (or, if there is not any such
numerically corresponding day, the last day) in the calendar month that is the
number of months corresponding to the specified Index Maturity after the month
in which such Interest Reset Date falls.
Determination of CD Rate. If the Base Rate specified on the face hereof is
the CD Rate, the CD Rate with respect to this Note shall be determined on each
Interest Determination Date and shall be the rate for the relevant Interest
Determination Date for negotiable U.S. dollar certificates of deposit having the
specified Index Maturity as published in H.15(519) under the heading "CDs
(Secondary Market)." If such rate is not published before 3:00 p.m., New York
City time, on the relevant Calculation Date, then the CD Rate for such Interest
Reset Date shall be the rate on such Interest Determination Date for negotiable
certificates of deposit having the specified Index Maturity as published in
Composite Quotations under the heading "Certificates of Deposit." If by 3:00
p.m., New York City time, on such Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, the CD Rate for such Interest Reset
Date shall be calculated by the Calculation Agent and shall be the arithmetic
mean of the secondary market offered rates, as of 10:00 a.m., New York City
time, on such Interest Determination Date, of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent for negotiable U.S. dollar certificates of deposit of
major United States money market banks in the market for negotiable U.S. dollar
certificates of deposit with a remaining maturity closest to the specified Index
Maturity in a denomination of U.S. $5,000,000; provided, however, that if fewer
than three dealers selected as provided above by the Calculation Agent are
quoting as mentioned in this sentence, the CD Rate for such Interest Reset Date
will be the CD Rate in effect on such Interest Determination Date.
Determination of Federal Funds Rate. If the Base Rate specified on the
face hereof is the Federal Funds Rate, the Federal Funds Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate on the relevant Interest Determination Date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)." If such
rate is not published before 3:00 p.m., New York City time, on the relevant
Calculation Date, then the Federal Funds Rate for such Interest Reset Date will
be the rate on such Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If by 3:00 p.m.,
New York City time, on such Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, the Federal Funds Rate for such
Interest Reset Date shall be calculated by the Calculation Agent and shall be
the arithmetic mean of the rates, as of 9:00 a.m., New York City time, on such
Interest Determination Date, for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City of
New York selected by the
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Calculation Agent; provided, however, that if fewer than three brokers selected
by the Calculation Agent are quoting as mentioned in this sentence, the Federal
Funds Rate for such Interest Reset Date will be the Federal Funds Rate in effect
on such Interest Determination Date.
Determination of LIBOR. If the Base Rate specified on the face hereof is
LIBOR, LIBOR with respect to this Note shall be determined on each Interest
Determination Date as follows:
(a) The Calculation Agent will determine either (i) the arithmetic
mean of the offered rates for deposits in U.S. dollars for the period of
the applicable Index Maturity commencing on the Interest Reset Date which
appear on the Reuters Screen LIBO Page at approximately 11:00 a.m., London
time, on such Interest Determination Date if at least two such offered
rates appear on the Reuters Screen LIBO Page ("LIBOR Reuters"), or (ii) the
rate for deposits in U.S. dollars for the period of the applicable Index
Maturity commencing on the Interest Reset Date that appears on the Telerate
Page 3750 as of 11:00 a.m., London time, on such Interest Determination
Date ("LIBOR Telerate"). "Reuters Screen LIBO Page" means the display
designated as Page "LIBO" on the Reuters Monitor Money Rate Service (or
such other page as may replace the LIBO page on the service for the purpose
of displaying London interbank offered rates of major banks). "Telerate
Page 3750" means the display designated as page "3750" on the Telerate
Service (or such other page as may replace the 3750 page on that service or
such other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates
for U.S. dollar deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR will be determined as if LIBOR Telerate
had been specified. If fewer than two offered rates appear on the Reuters
Screen LIBO Page, or if no rate appears on the Telerate Page 3750, as
applicable, LIBOR in respect of that Interest Determination Date will be
determined as if the parties had specified the rate described in (b) below.
(b) If fewer than two offered rates appear on the Reuters Screen LIBO
Page or no rate appears on Telerate Page 3750, as applicable, the
Calculation Agent will request the principal London offices of four major
banks in the London interbank market, as selected by the Calculation Agent,
to provide the Calculation Agent with its offered quotation for deposits in
U.S. dollars for the period of the applicable Index Maturity to prime banks
in the London interbank market at approximately 11:00 a.m., London time,
commencing on the second London Business Day immediately following such
Interest Determination Date and in a principal amount equal to an amount of
not less than U.S. $1 million that is representative of a single
transaction in such market at such time. If at least two quotations are
provided, LIBOR in respect of that Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of that Interest Determination Date will be the
arithmetic mean of the rates quoted by three major banks in The City of New
York
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selected by the Calculation Agent at approximately 11:00 a.m., New York
City time, commencing on the second London Business Day immediately
following such Interest Determination Date for loans in U.S. dollars to
leading European banks, for the period of the applicable Index Maturity and
in a principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such
time; provided, however, that if fewer than three banks selected as
aforesaid by the Calculation Agent are quoting rates as mentioned in this
sentence, the rate of interest in effect for the applicable period will be
the LIBOR in effect on such Interest Determination Date.
Determination of Prime Rate. If the Base Rate specified on the face hereof
is the Prime Rate, the Prime Rate with respect to this Note shall be determined
on each Interest Determination Date and shall be the rate set forth for the
relevant Interest Determination Date in H.15(519) under the heading "Bank Prime
Loan." If such rate is not published before 3:00 p.m., New York City time, on
the relevant Calculation Date, then the Prime Rate for such Interest Reset Date
will be the arithmetic mean of the rates of interest publicly announced by each
bank that appears on the display designated as page "USPRIME1" on the Reuters
Monitor Money Rates Service or any successor service (or such other page as may
replace the USPRIME1 page on that service or any successor service for the
purpose of displaying prime rates or base lending rates of major United States
banks) ("Reuters Screen USPRIME1 Page") as such bank's prime rate or base
lending rate as in effect for such Interest Determination Date as quoted on the
Reuters Screen USPRIME1 Page on such Interest Determination Date. If fewer than
four such rates appear on the Reuters Screen USPRIME1 Page on such Interest
Determination Date, the Prime Rate for such Interest Reset Date will be the
arithmetic mean of the prime rates or base lending rates (quoted on the basis of
the actual number of days in the year divided by a 360-day year) as of the close
of business on such Interest Determination Date by four major banks in The City
of New York selected by the Calculation Agent; provided, however, that if fewer
than four banks selected as provided above by the Calculation Agent are quoting
as mentioned in this sentence, the Prime Rate for such Interest Reset Date will
be the Prime Rate in effect on such Interest Determination Date.
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is the Treasury Rate, the Treasury Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate for the
auction on the relevant Interest Determination Date of direct obligations of the
United States ("Treasury Bills") having the specified Index Maturity as
published in H.15(519) under the heading "U.S. Government Securities/Treasury
Bills/Auction Average (Investment)" or, if not so published by 3:00 p.m., New
York City time, on the relevant Calculation Date, the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) for such auction as otherwise
announced by the United States Department of the Treasury. If the results of
such auction of Treasury bills having the specified Index Maturity are not
published or reported as provided above by 3:00 p.m., New York City time, on
such Calculation Date, or if no such auction is held during such week, then the
Treasury Rate shall be the rate set forth in H.15(519) for the relevant Interest
Determination Date for the specified
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Index Maturity under the heading "U.S. Government Securities/Treasury
Bills/Secondary Market." If such rate is not so published by 3:00 p.m., New
York City time, on the relevant Calculation Date, the Treasury Rate for such
Interest Reset Date shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent, on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates as of approximately 3:30 p.m., New York City
time, on such Interest Determination Date, of three primary United States
government securities dealers in The City of New York selected by the
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the specified Index Maturity; provided, however, that if fewer than
three dealers selected as provided above by the Calculation Agent are quoting as
mentioned in this sentence, the Treasury Rate for such Interest Reset Date will
be the Treasury Rate in effect on such Interest Determination Date.
Determination of CMT Rate. If the Base Rate specified on the face hereof
is the CMT Rate, the CMT Rate with respect to this Note shall be determined on
each Interest Determination Date and shall be the rate displayed on the
Designated CMT Telerate Page under the caption ". . . Treasury Constant
Maturities . . . Federal Reserve Board Release H.15 . . . Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index for (i) if
the Designated CMT Telerate Page is 7055, the rate on such Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified on the face hereof, for the week or the
month, as applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate for such Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H.15(519). If such rate is no longer
published or is not published by 3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate on such Interest Determination Date will be
such treasury constant maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity Index) for the
Interest Determination Date with respect to such Interest Reset Date as may then
be published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in the relevant H.15(519). If such information is
not provided by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate on the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30 p.m.,
New York City time, on such Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York (which
may include the Agent or its affiliates) selected by the Calculation Agent (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of
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the United States ("Treasury Notes") with an original maturity of approximately
the Designated CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent is unable to obtain three such Treasury Note quotations, the CMT Rate on
such Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 p.m., New York City time, on such
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S. $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers so selected by the Calculation Agent
are quoting as mentioned herein, the CMT Rate determined as of such Interest
Determination Date will be the CMT Rate in effect on such Interest Determination
Date. If two Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the Calculation Agent will obtain from five
Reference Dealers quotations for the Treasury Note with the shorter remaining
term to maturity and will use such quotations to calculate the CMT Rate as set
forth above.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service (or any successor service) on the page specified on the face hereof (or
any other page as may replace such page on that service (or any successor
service) for the purpose of displaying Treasury Constant Maturities as reported
in H.15(519)) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519). If no such page is specified on the face hereof, the
Designated CMT Telerate Page shall be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
Determination of Eleventh District Cost of Funds Rate. If the Base Rate
specified on the face hereof is the Eleventh District Cost of Funds Rate, the
Eleventh District Cost of Funds Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate equal to
the monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate Interest
Determination Date falls, as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on such
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Eleventh District Cost of Funds Rate Interest Determination Date then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Determination Date shall be the monthly weighted average cost of funds paid
by member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco, as such cost
of funds for the calendar month immediately preceding such Eleventh District
Cost of Funds Rate Interest Determination Date. If the FHLB of San Francisco
fails to announce the Index on or prior to such Eleventh District Cost of Funds
Rate Interest Determination Date for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date, the
Eleventh District Cost of Funds Rate determined as of such Eleventh District
Cost of Funds Rate Determination Date will be the Eleventh District Cost of
Funds Rate in effect on such Eleventh District Cost of Funds Rate Interest
Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide to
the holder hereof the interest rate hereon then in effect and, if determined,
the interest rate that will become effective as of the next Interest Reset Date.
The Calculation Agent's determination of any interest rate will be final
and binding in the absence of manifest error.
PAYMENTS. Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Stated Maturity (or earlier
redemption or repayment date), as the case may be; provided, however, that if
the Interest Reset Period with respect to this Note is daily or weekly, interest
payable on any Interest Payment Date, other than interest payable on any date on
which principal hereof is payable, will include interest accrued through and
including the Record Date next preceding the applicable Interest Payment Date.
Accrued interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor shall
be computed by adding the interest factor calculated for each day in the period
for which interest is being paid. The interest factor for each such date shall
be computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate,
LIBOR or Eleventh District Cost of Funds Rate, as specified on the face hereof,
or by the actual number of days in the year if the Base Rate is the Treasury
Rate or the CMT Rate, as specified on the face hereof. All percentages
resulting from any calculation of the rate of interest on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point (.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on
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this Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be the
applicable rate as reset on such date. The interest rate applicable to any
other day is the interest rate from the immediately preceding Interest Reset
Date (or, if none, the Initial Interest Rate).
If an Interest Payment Date (other than at Stated Maturity, a Redemption
Date or an repayment date at the option of the holder) would otherwise fall on a
day that is not a Market Day with respect to this Note (and if this Note is
payable in a Specified Currency other than U.S. dollars, a Business Day in the
country issuing the Specified Currency (or, for ECUs, Brussels)), such Interest
Payment Date will be on the next succeeding Market Day (with interest accruing
to but excluding the next succeeding Market Day) (or, in the case of a LIBOR
Note, if such day falls in the next calendar month, the next preceding Market
Day (with interest accruing to but excluding the next preceding Market Day)).
If the Stated Maturity, Redemption Date or repayment date at the option of the
holder falls on a day that is not a Market Day (and if this Note is payable in a
Specified Currency other than U.S. dollars, a Business Day in the country
issuing the Specified Currency (or, for ECUs, Brussels)), the required payment
of principal, premium, if any, and interest will be made on the next succeeding
Market Day as if made on the date such payment was due, and no interest will
accrue on such payment for the period from and after the Stated Maturity,
Redemption Date or repayment date at the option of the holder, as the case may
be, to the date of such payment on the next succeeding Market Day.
If the Specified Currency shown on the face of this Note is other than U.S.
dollars, payments of principal of (and premium, if any) and interest on the
Notes will be made in the applicable Specified Currency; provided, however, that
payments of principal (and premium, if any) and interest on Notes denominated in
other than U.S. dollars will nevertheless be made in U.S. dollars:
(a) at the option of the holders of the Notes under the procedures
described in the two following paragraphs; and
(b) at the Company's option in the case of imposition of exchange
controls or other circumstances beyond the Company's control.
Except as provided in the next paragraph, if the Specified Currency shown
on the face of this Note is other than U.S. dollars, payments of interest and
principal (and premium, if any) will be made in U.S. dollars if the registered
holder of such Note on the relevant Record Date, or at Maturity, as the case may
be, has transmitted a written request for such payment in U.S. dollars to the
Paying Agent at the office of the Paying Agent on or before such Record Date, or
the date 15 days before Maturity, as the case may be. Such request may be in
writing (mailed or hand delivered) or by cable or other form of facsimile
transmission. Any such request will remain in effect for any further payments of
interest and principal (and premium, if any) on such Note payable to such
holder, unless such request is revoked on or before the relevant Record Date or
the date 15 days before Maturity, as the case may be.
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The U.S. dollar amount to be received by a holder of a Note denominated in
other than U.S. dollars who elects to receive payment in U.S. dollars will be
determined by the exchange rate agent, or any successor thereto (the "Exchange
Rate Agent"), at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable Payment Date, by selecting the indicative
quotations for the Specified Currency appearing at such time on the bank
composite or multi-contributor pages of the Quoting Source (as defined below)
for the first three banks, in descending order of their appearance on a list of
banks to be agreed to by the Company and the Exchange Rate Agent prior to such
second Business Day, which are offering quotes on the Quoting Source. The
Exchange Rate Agent shall select from among the selected quotations the one
which will yield the largest number of U.S. dollars upon conversion from such
Specified Currency. The "Quoting Source" shall mean Reuters Monitor Foreign
Exchange Service, or if the Exchange Rate Agent determines that such service is
not available, Telerate Monitor Foreign Exchange Service. If the Exchange Rate
Agent determines that neither Service is available, the Company and the Exchange
Rate Agent shall agree on a comparable display or other comparable manner of
obtaining quotations and such display or manner shall become the Quoting Source.
In the case of a Specified Currency other than ECUs, if (i) fewer than
three bid quotations are available at the time a determination is to be made by
the Exchange Rate Agent pursuant to the preceding paragraph, or (ii) the
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from the
Company that there exist exchange controls or other circumstances beyond the
Company's control rendering such Specified Currency unavailable, then the
Exchange Rate Agent shall, prior to such Payment Date, notify the Company and
the Trustee of the noon buying rate in New York City for cable transfers, in the
Specified Currency indicated in such notice, as certified for customers purposes
by the Federal Reserve Bank of New York (the "Market Exchange Rate") as of such
second Business Day. If the Market Exchange Rate for such date is not then
available, the Exchange Rate Agent shall immediately notify the Company and the
Trustee of the most recently available Market Exchange Rate for such Specified
Currency. In the case of ECUs, if: (i) fewer than three bid quotations are
available at the time a determination is to be made by the Exchange Rate Agent
pursuant to the preceding paragraph, or (ii) the Exchange Rate Agent receives no
later than 12:00 noon, New York City time, on such second Business Day preceding
the applicable Payment Date notice from the Company that (A) there exist
exchange controls or other circumstances beyond the Company's control, rendering
ECUs unavailable or (B) ECUs are no longer used in the European Monetary System,
rendering ECUs unavailable, then the Exchange Rate Agent shall, prior to such
Payment Date, notify the Company and the Trustee of the rate of conversion for
ECUs into U.S. dollars, determined as of such second Business Day on the
following basis: The component currencies of the ECUs for this purpose (the
"Components") shall be the currency amounts that were components of the ECUs as
of the last date on which ECUs were used in the European Monetary System. The
equivalent of ECUs in U.S. dollars shall be calculated by aggregating the U.S.
dollar equivalent of the Components. The U.S. dollar equivalent of each of the
Components shall be determined by
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the Exchange Rate Agent on the basis of the most recently available Market
Exchange Rate for the Components, or as otherwise specified to the Exchange Rate
Agent by the Company.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, and such Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company shall be entitled to satisfy its
obligations to the holder of this Note by making such payment in U.S. dollars on
the basis of the most recently available noon-buying rate for cable transfers in
The City of New York, as determined by the Federal Reserve Bank of New York.
Any payment made under such circumstances in U.S. dollars where the required
payment is other than U.S. dollars will not constitute an Event of Default.
SINKING FUND. This Note will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with the provisions
of the following two paragraphs, will not be redeemable or subject to repayment
at the option of the holder prior to Maturity.
REDEMPTION. Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Stated Maturity. If the face of this Note
indicates that this Note is subject to optional redemption, this Note will be
redeemable at the Company's option, as a whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination) on and after the Initial Redemption Date set
forth on the face of this Note, on any date prior to the Stated Maturity at a
redemption price (the "Redemption Price"), as specified on the face of this
Note, equal to either (i) the price specified as a percentage of the face amount
to be redeemed plus accrued interest to the Redemption Date (subject to the
right of holders of record on the relevant Record Date to receive interest due
on an Interest Payment Date that is on or prior to the Redemption Date) or (ii)
100% of the principal amount thereof plus accrued interest to the Redemption
Date (subject to the right of holders of record on the relevant Record Date to
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date), plus a Make-Whole Premium, if any.
The "Make-Whole Premium" in respect of this Note is intended to be the
amount, if any, which, when added to the then outstanding principal amount of
this Note, would, if invested on the Redemption Date of this Note in U.S.
Treasury securities with maturities equal to the Remaining Life of this Note,
have a yield to maturity equal to the original yield to maturity of this Note,
based on the initial public offering price of this Note. The amount of the
Make-Whole Premium in respect of the principal amount of this Note will be
calculated by the Company and will be the excess, if any, of (i) the sum of the
present values, as of the Redemption Date of this Note, of (A) the respective
interest payments (exclusive of the amount of accrued interest to the Redemption
Date) on this Note that, but for such redemption, would have been payable on
their respective Interest Payment Dates after such Redemption Date, and (B) the
payment of such principal amount that, but for such
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redemption, would have been payable on the Stated Maturity over (ii) the amount
of such principal to be redeemed. Such present values will be determined in
accordance with generally accepted principles of financial analysis by
discounting the amounts of such payments of interest and principal from their
respective Stated Maturities to such Redemption Date at a discount rate equal to
the Treasury Yield.
The "Treasury Yield" in respect of this Note shall be determined as of the
date on which notice of redemption of this Note is sent to the holder hereof by
reference to the most recent Federal Reserve Statistical Release H.15(519) (or
successor publication) which has become publicly available not more than two
Business Days prior to such date (or, if such Statistical Release (or successor
publication) is no longer published or no longer contains the applicable data,
to the most recently published issue of The Wall Street Journal (Eastern
Edition) published not more than two Business Days prior to such date that
contains such data or, if The Wall Street Journal (Eastern Edition) is no longer
published or no longer contains such data, to any publicly available source of
similar market data), and shall be the most recent weekly average yield on
actively traded U.S. Treasury securities adjusted to a constant maturity equal
to the Remaining Life of this Note and, if applicable, converted to a bond
equivalent yield basis as described below. The "Remaining Life of this Note"
shall equal the number of years from the Redemption Date to the Stated Maturity
of this Note; provided that if the Remaining Life of this Note is not equal to
the constant maturity of a U.S. Treasury security for which a weekly average
yield is specified in the applicable source, then the Remaining Life of this
Note shall be rounded to the nearest one-twelfth of one year and the Treasury
Yield shall be obtained by linear interpolation (computed to the fifth decimal
place (one thousandth of a percentage point) and then rounded to the fourth
decimal place (one hundredth of a percentage point)), after rounding to the
nearest one-twelfth of one year, from the weekly average yields of (a) the
actively traded U.S. Treasury security with a maturity closest to and less than
the Remaining Life of this Note and (b) the actively traded U.S. Treasury
security with a maturity closest to and greater than the Remaining Life of this
Note, except that if the Remaining Life of this Note is less than three months,
the weekly average yield on actively traded U.S. Treasury securities adjusted to
a constant maturity of three months shall be used. The Treasury Yield shall, if
expressed on a yield basis other than that equivalent to a bond equivalent yield
basis, be converted to a bond equivalent yield basis and shall be computed to
the fifth decimal place (one thousandth of a percentage point) and then rounded
to the fourth decimal place (one hundredth of a percentage point).
Notice of redemption will be provided by mailing a notice of such
redemption to each holder by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to the
respective address of each holder as that address appears in the Security
Register. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the presentation and cancellation hereof.
REPAYMENT. Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Stated Maturity. If so
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indicated on the face of this Note, this Note may be subject to repayment at the
option of the holder on the date or dates, if any, specified on the face hereof
(the "Optional Redemption Date" or "Optional Redemption Dates") on the terms set
forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of U.S. $1,000 or the minimum Authorized Denomination of the
Specified Currency indicated on the face hereof (provided that any remaining
principal amount hereof shall not be less than U.S. $1,000 or such minimum
Authorized Denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
hereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the holder hereof, the Company must receive at the
corporate trust office of the Paying Agent in the City of Boston, Commonwealth
of Massachusetts or New York, New York, at least 30 days but not more than 60
days prior to the repayment, (i) this Note with the form entitled "Option to
Elect Repayment" on the reverse hereof duly completed or (ii) a telegram,
facsimile transmission or a letter from a member of a national securities
exchange or a member of the National Association of Securities Dealers, Inc.
(the "NASD") or a commercial bank or trust company in the United States which
must set forth the name of the holder of this Note, the principal amount of this
Note, the principal amount of this Note to be repaid, the certificate number or
a description of the tenor and terms of this Note, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Note to
be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse hereof, will be received by the Paying Agent not later
than the third Business Day after the date of such telegram, facsimile
transmission or letter; provided, that such telegram, facsimile transmission or
a letter from a member of a national securities exchange or a member of the NASD
or a commercial bank or trust company in the United States shall only be
effective if in such case, this Note and form duly completed are received by the
Paying Agent by such third Business Day. Exercise of such repayment option by
the holder hereof shall be irrevocable. In the event of repayment of this Note
in part only, a new Note or Notes of like tenor for the amount of the unpaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon cancellation hereof.
OPTIONAL EXTENSION OF MATURITY. If so specified on the face hereof, the
Stated Maturity of this Note may be extended at the option of the Company for
the period or periods of whole years specified on the face hereof (each an
"Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face hereof. If the Company exercises such option, the Paying
Agent will mail to the holder of this Note not later than 40 calendar days prior
to the old Stated Maturity a notice (the "Extension Notice"), first class
postage prepaid, indicating (a) the election of the Company to extend the
Maturity; (b) the new Stated Maturity; (c) the interest rate applicable to the
Extension Period; and (d) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which, the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the Paying Agent's mailing of the Extension Notice,
the Stated Maturity of this Note shall be extended automatically and, except as
modified by the
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Extension Notice and as described in the next paragraph, this Note will have the
same terms as prior to the mailing of such Notice.
Notwithstanding the foregoing, not later than 10:00 a.m., New York City
time, on the twentieth calendar day prior to the Maturity then in effect (or, if
such day is not a Business Day, not later than 10:00 a.m., New York City time,
on the immediately succeeding Business Day), the Company may, at its option,
revoke the Spread and/or Spread Multiplier provided for in the Extension Notice
and establish a higher interest rate for the Extension Period by causing the
Paying Agent to send notice of such Spread and/or Spread Multiplier to the
holder of such Note by first class mail, postage prepaid, or by such other means
as shall be agreed between the Company and the Paying Agent. Such notice shall
be irrevocable. All Notes with respect to which the Maturity is extended in
accordance with an Extension Notice will bear such Spread and/or Spread
Multiplier for the Extension Period, whether or not tendered for payment.
If the Company extends the Maturity of this Note, the holder will have the
option to require the Company to repay such Note on Maturity then in effect at a
price equal to the principal amount thereof plus all accrued and unpaid interest
to such date. In order to obtain repayment on the old Stated Maturity once the
Company has extended the Maturity hereof, the holder must follow the procedures
set forth for optional repayment, except that the period for delivery of this
Note or notification to the Paying Agent shall be at least 25 but not more than
35 calendar days prior to the old Stated Maturity and except that if holder has
tendered this Note for repayment pursuant to an Extension Notice, the holder
may, by written notice to the Paying Agent, revoke any such tender for repayment
until 3:00 p.m., New York City time, on the twentieth calendar day prior to the
old Stated Maturity (or, if such day is not a Business Day, until 3:00 p.m., New
York City time, on the immediately succeeding Business Day).
RENEWABLE NOTES. If this Note is a Renewable Note, this Note will mature
at Stated Maturity (the "Initial Maturity Date"), unless the Maturity of all or
any portion of the principal amount thereof is extended in accordance with the
procedures described below. On Election Date (which must be an Interest Payment
Date), the Maturity of this Note will be extended to the Interest Payment Date
occurring twelve months after such Election Date, unless the holder elects to
terminate the automatic extension of the Maturity of this Note or of any portion
thereof having a principal amount of U.S. $1,000 or any multiple of U.S. $1,000
in excess thereof, provided that the principal amount for which such option is
not exercised is at least U.S. $1,000 or any larger amount that is an integral
multiple of U.S. $1,000, by delivering a notice to such effect to the Paying
Agent not less than the Minimum Election Date Notice days nor more than Maximum
Election Date Notice days prior to such Election Date. Notwithstanding the
foregoing, the Maturity of this Note may not be extended beyond the Final
Maturity Date. If the holder elects to terminate the automatic extension of the
Maturity of any portion of the principal amount of this Note and such election
is not revoked as described below, such portion will become due and payable on
the Interest Payment Date
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falling six months (or such other time specified herein) after the Election Date
prior to which the holder made such election.
An election to terminate the automatic extension of Maturity may be revoked
as to any portion of this Note having a principal amount of U.S. $1,000 or any
multiple of U.S. $1,000 in excess thereof by delivering a notice to such effect
to the Paying Agent on any day following the effective date of the election to
terminate the automatic extension of Maturity and prior to the fifteenth
calendar day before the date on which such portion would otherwise mature. Such
a revocation may be made for less than the entire principal amount of this Note
for which the automatic extension of Maturity has been terminated; provided,
however, that the principal amount of this Note for which the automatic
extension of Maturity has been terminated and for which such a revocation has
not been made is at least U.S. $1,000 or any larger amount that is an integral
multiple of U.S. $1,000. Notwithstanding the foregoing, a revocation may not be
made during the period from and including a Record Date to but excluding the
immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the Maturity of the
Renewable Notes, if not revoked as described above by the holder making the
election or any subsequent holder, will be binding upon such subsequent holder.
If this Note is a Renewable Note, this Note may be redeemed in whole or in
part at the option of the Company on any Interest Payment Date, commencing with
the Interest Payment Date specified on the face hereof or in an Addendum hereto,
at a redemption price of 100% of the principal amount of this Note to be
redeemed, together with accrued and unpaid interest to the date of redemption.
Notice of redemption will be provided by mailing a notice of such redemption to
each holder by first class mail, postage prepaid, at least 30 and not more than
60 calendar days prior to the date fixed for redemption.
INDEXED NOTES. If so stated on the face hereof, the amount of principal,
premium and/or interest payable in respect hereof will be determined with
reference to the price or prices of specific commodities or stocks, or to the
exchange rate of one or more designated currencies (including composite
currencies) relative to an indexed currency or to such other price(s) or
exchange rate(s), as specified on the face hereof.
REGISTRATION OF TRANSFER. State Street Bank and Trust Company has been
appointed registrar for the Notes (the "Registrar," which term includes any
successor registrar appointed by the Company), and the Registrar will maintain
at its office at Two International Place, Boston, MA 02110 a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Registrar by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form approved by the
Registrar and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Registrar shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions for an equal aggregate
principal amount in authorized denominations, subject to the terms and
conditions
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set forth herein; provided, however, that the Registrar will not be required to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, or as to which the holder thereof has elected to
cause such Note to be repaid in whole or in part, except the unredeemed or
unpaid portion of Notes being redeemed or repaid in part, or to register the
transfer of or exchange Notes to the extent and during the period so provided in
the Indenture with respect to the redemption of Notes. Notes are exchangeable
at said office for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions. All such
exchanges and transfers of Notes will be free of charge, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form approved by the
Registrar and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Registrar, a new Note of like tenor will be issued by the
Company in exchange for the Note so mutilated or defaced, or in lieu of the Note
so destroyed or lost or stolen, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Registrar and the
Company that such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, in denominations of
U.S. $1,000 or any integral multiple of U.S. $1,000 or the minimum Authorized
Denomination. If the Specified Currency shown on the face of this Note is other
than U.S. Dollars, the authorized denominations shall be the amount of the
Specified Currency for such Note equivalent, at the noon buying rate in The City
of New York for cable transfers for such Specified Currency (the "Exchange
Rate") on the sixth Business Day in The City of New York and in the country
issuing such currency (or, for ECUs, Brussels) next preceding the date of issue
of such Note, to U.S. $1,000 (rounded to the nearest 1,000 units of such
Specified Currency) and any greater amount that is an integral multiple of 1,000
units of such Specified Currency.
EVENTS OF DEFAULT. If an Event of Default (as defined in the Indenture)
with respect to the Notes of this series shall occur and be continuing, the
principal of the Notes of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
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ORIGINAL ISSUE DISCOUNT NOTES. Notwithstanding anything herein to the
contrary, if this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable in the event of redemption or repayment prior to
the Stated Maturity hereof in lieu of the principal amount due at the Stated
Maturity hereof shall be the Amortized Face Amount of this Note as of the
Redemption Date or the date of repayment, as the case may be, multiplied by the
Redemption Price. The "Amortized Face Amount" of this Note shall be the amount
equal to (a) the Issue Price (as set forth on the face hereof) plus (b) that
portion of the difference between the Issue Price and the principal amount
hereof that has accrued at the Yield to Maturity (as set forth on the face
hereof) (computed in accordance with generally accepted United States bond yield
computation principles using a constant yield method) at the date as of which
the Amortized Face Amount is calculated but in no event shall the Amortized Face
Amount of this Note exceed its principal amount.
The constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as defined
below), corresponds to the shortest period between Interest Payment Dates (with
ratable accruals within a compounding period, a coupon rate equal to the initial
coupon rate applicable to this Note and an assumption that the Maturity of this
Note will not be accelerated). If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
MODIFICATIONS AND WAIVERS; OBLIGATION OF THE COMPANY ABSOLUTE. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No provision of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place, and
rate or formula, and in the coin or currency, herein and in the Indenture
prescribed unless otherwise agreed between the Company and the registered holder
of this Note.
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<PAGE>
REGISTERED HOLDER TREATED AS OWNER. Prior to due presentment of this Note
for registration of transfer, the Company or any agent of the Company, the
Registrar or the Trustee may treat the holder in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Registrar, the Trustee nor any such agent
shall be affected by notice to the contrary.
NO RECOURSE AGAINST CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement contained in the Indenture or in this Note, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such, or against any past, present or future shareholder, officer
or trustee, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of this Note by the holder hereof and as part of
the consideration for the issue of this Note.
GOVERNING LAW. This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
CUSIP NUMBER. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused "CUSIP"
numbers to be printed on this Note as a convenience to the holders. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on this Note, and reliance may be placed only on the other
identification numbers printed hereon.
DEFINED TERMS. All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
DEFEASANCE. The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Note.
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<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
========================================
========================================
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Security Capital Group Incorporated and hereby does
irrevocably constitute and appoint
........................................................................Attorney
to transfer said Security on the books of the within-named Company with full
power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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<PAGE>
FORM OF OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest to the Repayment Date, to the undersigned, at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof (which shall be increments of U.S. $1,000 (or if the
Specified Currency is other than U.S. dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid:________________________________________________________________________;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):_
________________________________________________________________________________
Dated: ______________________
NOTICE: The signature on this Option to Elect Repayment must correspond with the
name as written upon the face of the within instrument in every particular
without alteration or enlargement.
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