As filed with the Securities and Exchange Commission on April 28, 1998
Registration Statement No. 333-_____
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________
SOVRAN SELF STORAGE, INC.
AND SOVRAN ACQUISITION LIMITED PARTNERSHIP
(Exact name of Registrant as specified in its charter)
Sovran Self Storage, Inc. - Maryland 16-1194043
Sovran Acquisition Limited Partnership-Delaware 16-1481551
(State of Incorporation or Organization) (I.R.S. Employer
Identification Number)
5116 Main Street
Williamsville, New York 14211
(716) 631-1850
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
_________________________
KENNETH F. MYSZKA
President
5116 Main Street
Williamsville, New York 14211
(716) 631-1850
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
_________________________
Copy to:
Frederick G. Attea, Esq.
David J. Murray, Esq.
Phillips, Lytle, Hitchcock,
Blaine & Huber LLP
3400 Marine Midland Center
Buffalo, New York 14203
(716) 847-8400
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
<PAGE>
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
Being to be Price Per Offering Registration
Registered Registered(1) Units(2) Price(3) Fee(4)
Sovran Self
Storage, Inc.
Preferred Stock
Common Stock $100,000,000 N.A. $100,000,000 $29,500
Sovran
Acquisition
Limited
Partnership
Debt
Securities $150,000,000 N.A. $150,000,000 $44,250
(1) The amount to be registered consists of up to $100,000,000 of an
indeterminate amount of Preferred stock and/or Common Stock of Sovran
Self Storage, Inc. and up to $150,000,000 of an indeterminate amount
of non-convertible investment grade Debt Securities of Sovran
Acquisition Limited Partnership. There is also being registered
hereunder such currently indeterminate number of shares of Common
Stock of Sovran Self Storage, Inc. as may be issued upon conversion of
Preferred Stock of Sovran Self Storage, Inc. registered hereby.
(2) The proposed maximum offering price per unit has been omitted pursuant
to Securities Act Release No. 6964. The registration fee has been
calculated in accordance with Rule 457(o) under the Securities Act of
1933, as amended, and reflects the offering price rather than the
principal amount of any Debt Securities issued at a discount.
(3) Estimated solely for purposes of computing the registration fee. No
separate consideration will be received for shares of Common Stock of
Sovran Self Storage, Inc. issued upon conversion of Preferred Stock of
Sovran Self Storage, Inc.
<PAGE>
(4) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
amount of $23,337,500 of securities to be issued by Sovran Self
Storage, Inc. covered by the Registration Statement on Form S-3
(No. 333-08883) is being carried forward and the corresponding
registration fees of $6,884 that were previously paid at the time of
filing shall be applied to this Registration Statement.
_________________________
The Registrants hereby amend this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrants shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The Prospectus contained in this Registration Statement relates to and
constitutes a Post-Effective Amendment to the Registration Statement on
Form S-3 (No. 333-08883) of Sovran Self Storage, Inc., and is intended to
be the combined prospectus referred to in Rule 429 of the Securities Act of
1933, as amended.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
NOR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL __, 1998
PROSPECTUS
$100,000,000
Sovran Self Storage, Inc.
Preferred Stock
Common Stock
$150,000,000
Sovran Acquisition Limited
Partnership
Debt Securities
__________________
Sovran Self Storage, Inc. ("Sovran" or the "Company") may offer from
time to time in one or more series (i) shares of its preferred stock, $.01
par value per share ("Preferred Stock"), and (ii) shares of its common
stock, $.01 par value per share ("Common Stock"), with an aggregate public
offering price of up to $100,000,000 (or its equivalent in another currency
based on the exchange rate at the time of sale) in amounts, at prices and
on terms to be determined at the time of offering. Sovran Acquisition
Limited Partnership (the "Operating Partnership") may offer from time to
time in one or more series unsecured, non-convertible investment grade debt
securities ("Debt Securities") with an aggregate offering price of up to
$150,000,000 (or its equivalent in another currency based upon the exchange
rate at the time of sale) in amounts, at prices and on terms to be
determined at the time of offering. The Preferred Stock, Common Stock and
Debt Securities (collectively, the "Securities") may be offered separately
or together, in separate classes or series, in amounts, at prices and on
terms to be set forth in one or more supplements to this Prospectus (each a
"Prospectus Supplement").
The specific terms of the Securities for which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement
and will include, where applicable: (i) in the case of Preferred Stock, the
specific designation and stated value per share, any dividend, liquidation,
redemption, conversion, voting and other rights, and any initial public
offering price; (ii) in the case of Common Stock, any initial public
offering price; (iii) in the case of Debt Securities, the specific title,
aggregate principal amount, ranking, currency, form (which may be
registered or bearer, or certificated or global), authorized denominations,
maturity, rate (or manner of calculation thereof) and time of payment of
interest, terms for redemption at the option of the Operating Partnership
or repayment at the option of the holder, terms for sinking fund payments,
covenants and any initial public offering price. In addition, such
specific terms may include limitations on direct or beneficial ownership
and restrictions on transfer of the Securities, in each case as may be
consistent with the Company's Amended and Restated Articles of
Incorporation or otherwise appropriate to preserve the status of the
Company as a real estate investment trust ("REIT") for federal income tax
purposes. See "Restrictions on Transfers of Capital Stock."
The applicable Prospectus Supplement will also contain information,
where appropriate, about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of,
the Securities covered by such Prospectus Supplement.
<PAGE>
The Preferred Stock and Common Stock may be offered by the Company and
the Debt Securities may be offered by the Operating Partnership directly to
one or more purchasers, through agents designated from time to time by the
Company or the Operating Partnership or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of
the securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them will be set forth,
or will be calculable from the information set forth, in an accompanying
Prospectus Supplement. See "Plan of Distribution." No Securities may be
sold without delivery of a Prospectus Supplement describing the method and
terms of the offering of such Securities.
See "Risk Factors" on page 5 for certain factors that should be
considered by prospective investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
_______________________
The date of this Prospectus is ___________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "SEC" or "Commission") a
Registration Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities. This
Prospectus, which constitutes part of the Registration Statement, omits
certain of the information contained in the Registration Statement and the
exhibits thereto on file with the Commission pursuant to the Securities Act
and the rules and regulations of the Commission thereunder. The
Registration Statement, including exhibits thereto, may be inspected and
copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the
Commission's Regional Offices at 7 World Trade Center, 13th Floor, New
York, New York 10048, and Northwestern Atrium Center, 500 W. Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and copies may be
obtained at the prescribed rates from the Public Reference Section of the
Commission at its principal office in Washington, D.C. The Commission
maintains an Internet Web site (http://www.sec.gov.) that contains such
documents filed electronically by the Company and the Operating Partnership
with the Commission through its Electronic Data Gathering, Analysis and
Retrieval System (EDGAR) filing system. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
are not necessarily complete, and in each instance reference is made to the
copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects
by such reference.
The Company and, since April 1998, the Operating Partnership, are
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith the
Company and the Operating Partnership file reports and proxy statements and
other information with the Commission. Such reports, proxy statements and
other information can be inspected and copied at the locations described
above. Copies of such materials can be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. In addition, the Common Stock
is listed on the New York Stock Exchange (the "NYSE"), and such materials
can be inspected and copied at the NYSE, 20 Broad Street, New York, New
York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission pursuant
to the Exchange Act are incorporated by reference in this Prospectus: (i)
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, (ii) the Company's Current Report on Form 8-K filed on
February 20, 1998, as amended by the Company's Amended Current Report on
Form 8-K/A filed on April 17, 1998, (iii) the description of the Company's
Common Stock contained in the Company's Registration Statement on Form 8-A
dated June 16, 1995, including all amendments and reports updating such
description, and (iv) the Operating Partnership's Registration Statement on
Form 10, dated April 22, 1998, including all amendments and reports
updating such Registration Statement.
<PAGE>
All documents filed by the Company or the Operating Partnership
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of
the offering of all Securities shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of
filing of such documents. The Company and the Operating Partnership will
provide, without charge, to each person, including any beneficial owner, to
whom a copy of this Prospectus is delivered, at the request of such person,
a copy of any or all of the documents incorporated herein by reference
(other than exhibits thereto, unless such exhibits are specifically
incorporated by reference into such documents). Written requests for such
copies should be directed to David L. Rogers, Chief Financial Officer,
Sovran Self Storage, Inc., 5166 Main Street, Williamsville, New York,
14221, telephone (716) 633-1850.
Any statement contained herein or in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in an applicable Prospectus Supplement) or in any
subsequently filed document that is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Prospectus or
any Prospectus Supplement, except as so modified or superseded.
<PAGE>
RISK FACTORS
"Safe Harbor" statement under the Private Securities Litigation Reform
Act of 1995: This Prospectus, including the information incorporated by
reference herein, and the applicable Prospectus Supplement contain forward-
looking statements within the meaning of Section 27A of the Securities Act
of 1933, as amended, and Section 21E of the Securities Exchange Act of
1934, as amended. Actual results could differ materially from those
projected in the forward-looking statements as a result of the risk factors
set forth below, and prospective investors should carefully consider such
risk factors in conjunction with the other information contained or
incorporated by reference in this Prospectus and the applicable Prospectus
Supplement before making a decision to purchase any Securities. Unless the
context otherwise requires, the "Company" shall also hereinafter refer to
the Operating Partnership and its subsidiaries.
Prospective investors should carefully consider the following
information in conjunction with the other information contained in this
Prospectus and the applicable Prospectus Supplement before purchasing
Securities.
Risks Related To Acquisitions
The Company has completed many acquisitions of self storage facilities
since the Company's initial public offering of Common Stock in June 1995
(the "Initial Offering"). (The Company's self storage facilities are
sometimes referred to individually as a "Property" and collectively as the
"Properties".) The Company's strategy is to continue to grow by acquiring
additional self-storage facilities. Acquisitions entail risks that
investments will fail to perform in accordance with expectations and that
judgments with respect to the prices paid for acquired properties and the
costs of any improvements required to bring an acquired property up to
standards established for the market position intended for that property
will prove inaccurate, as well as general investment risks associated with
any new real estate investment.
Real Estate Financing Risks
Credit Facility. The Company has a line of credit (the "Credit
Facility") with a syndicate of financial institutions (the "Lenders"). The
Credit Facility is recourse to the Company and the Operating Partnership
and the required payments are not reduced if the economic performance of
any of the Properties declines. The Credit Facility, except under certain
circumstances, limits the Company's ability to make distributions to its
shareholders. If there should occur certain other events of default, the
Lenders may seek to exercise their rights under the Credit Facility, which
could have a material adverse effect on the Company and its ability to make
expected distributions to shareholders and distributions required by the
real estate investment trust provisions of the Internal Revenue Code of
1986, as amended (the "Code").
Risk of Rising Interest Rates. Indebtedness that the Company incurs
under the Credit Facility bears interest at a variable rate. Accordingly,
increases in interest rates could increase the Company's interest expense,
which would adversely affect the Company's cash available for distribution
and its ability to pay expected distributions to shareholders. The Company
may in the future hedge, cap or otherwise limit its exposure to rising
<PAGE>
interest rates as appropriate and cost effective. If the amount of the
Company's indebtedness bearing interest at a variable rate exceeds certain
levels, the Company may be required to make such arrangements pursuant to
the terms of the Credit Facility.
Refinancing Risks. It may be necessary for the Company to refinance
the Credit Facility through additional debt financing or equity offerings.
If the Company were unable to refinance this indebtedness on acceptable
terms, the Company might be forced to dispose of certain Properties upon
disadvantageous terms, which might result in losses to the Company and
might adversely affect the cash available for distribution. If prevailing
interest rates or other factors at the time of refinancing result in higher
interest rates on refinancings, the Company's interest expense would
increase, which would adversely affect the Company's cash available for
distribution and its ability to pay expected distributions to shareholders.
No Limitations on Debt. The Board of Directors of the Company
currently has a policy of limiting the amount of Company debt at the time
of incurrence to less than 50% of the sum of the market value of the issued
and outstanding Common Shares and the Company's debt at the time such debt
is incurred; however, the organizational documents of the Company do not
contain any limitation on the amount of indebtedness the Company might
incur. Accordingly, the Board of Directors could alter or eliminate the
current policy limitation on borrowing without a vote of the shareholders.
The Company could become highly leveraged if this policy were changed.
Self-Storage Industry Risks
The Properties are subject to all operating risks common to the self-
storage industry. These risks include decreases in demand for rental
spaces in a particular locale, changes in supply of or demand for similar
or competing facilities in an area and changes in market rental rates.
There is also risk of inability to collect rents from customers. The
Company's current strategy is to acquire interests only in self-storage
facilities. Consequently, the Company is subject to risks inherent in
investments in a single industry. The Properties compete with other self-
storage facilities in their geographic markets. As a result of
competition, the Properties could experience a decrease in occupancy levels
and rental rates, thereby decreasing the cash available for distribution.
The Company competes in operations and for acquisition opportunities with
entities that have substantial financial resources. Competition may reduce
the number of suitable acquisition opportunities offered to the Company and
increase the bargaining power of property owners seeking to sell. The
self-storage industry has at times experienced overbuilding in response to
perceived increases in demand. A recurrence of such overbuilding might
cause the Company to experience a decrease in occupancy levels, limit the
Company's ability to increase rents and compel the Company to offer
discounted rents.
Real Estate Investment Risks
General Risks. The Company's investments are subject to varying
degrees of risk generally incident to the ownership of real property. The
underlying value of the Company's real estate investments and the Company's
income and ability to make distributions to its shareholders are dependent
upon the Company's ability to operate the Properties in a manner sufficient
to maintain or increase cash available for distribution. Income from the
Properties may be adversely affected by changes in national economic
<PAGE>
conditions; changes in local market conditions due to changes in general or
local economic conditions and neighborhood characteristics; competition
from other self-storage facilities; changes in interest rates and in the
availability, cost and terms of mortgage funds; the impact of present or
future environmental legislation and compliance with environmental laws;
the ongoing need for capital improvements, particularly in older
facilities; changes in real estate tax rates and other operating expenses;
adverse changes in governmental rules and fiscal policies; uninsured losses
resulting from casualties associated with civil unrest, acts of God,
including natural disasters, and acts of war; adverse changes in zoning
laws; and other factors which are beyond the control of the Company.
Illiquidity of Real Estate May Limit its Value. Real estate
investments are relatively illiquid. The ability of the Company to vary
its portfolio in response to changes in economic and other conditions is
limited. In addition, provisions of the Code may limit the Company's
ability to profit on the sale of Properties held for fewer than four years.
There can be no assurance that the Company will be able to dispose of a
Property when it finds disposition advantageous or necessary or that the
sale price of any disposition will recoup or exceed the amount of the
Company's investment.
Uninsured and Underinsured Losses Could Result in Loss of Value of
Properties. There are certain types of losses, generally of a catastrophic
nature, that may be uninsurable or not economically insurable, as to which
the Properties are at risk in their particular locales. The Company's
management uses its discretion in determining amounts, coverage limits and
deductibility provisions of insurance, with a view to acquiring appropriate
insurance on the Company's investments at a reasonable cost and on suitable
terms. This may result in insurance coverage that in the event of a
substantial loss would not be sufficient to pay the full current market
value or current replacement cost of the Company's lost investment.
Inflation, changes in building codes and ordinances, environmental
considerations, and other factors also might make it infeasible to use
insurance proceeds to replace a Property after it has been damaged or
destroyed. Under such circumstances, the insurance proceeds received by
the Company might not be adequate to restore its economic position with
respect to such Property.
Possible Liability Relating to Environmental Matters. Under various
federal, state and local environmental laws, ordinances and regulations, a
current or previous owner or operator of real property may be liable for
the costs of removal or remediation of hazardous or toxic substances on,
under or in such property. Such laws often impose liability whether or not
the owner or operator caused or knew of the presence of such hazardous or
toxic substances and whether or not the storage of such substances was in
violation of a tenant's lease. In addition, the presence of hazardous or
toxic substances, or the failure to remediate such property, may adversely
affect the owner's ability to borrow using such real property as
collateral. In connection with the ownership of the Properties, the
Company may be potentially liable for any such costs.
Americans with Disabilities Act. The Americans with Disabilities Act
of 1990 ("ADA") generally requires that buildings be made accessible to
persons with disabilities. A determination that the Company is not in
compliance with the ADA could result in imposition of fines or an award of
damages to private litigants. If the Company were required to make
<PAGE>
modifications to comply with the ADA, the Company's results of operations
and ability to make expected distributions to its shareholders could be
adversely affected.
Limitations on Ability to Change Control
Limitation on Ownership of Shares. In order to maintain its
qualification as a REIT, not more than 50% in value of the Company's
outstanding shares of stock may be owned, directly or indirectly, by five
or fewer individuals (as defined in the Code) (the "Five or Fewer Test").
The Company's Amended and Restated Articles of Incorporation ("Articles of
Incorporation") limit ownership of the issued and outstanding Common Stock
by any single shareholder (directly or by virtue of the attribution
provisions of the Code) to 9.8% of the aggregate value of the Company's
outstanding stock, except that the ownership by certain entities is limited
to 15% (the "Ownership Limit"). The Ownership Limit may (i) have the
effect of precluding acquisition of control of the Company by a third party
without consent of the Board of Directors even if a change in control were
in the interest of shareholders, and (ii) limit the opportunity for
shareholders to receive a premium for their Common Stock that might
otherwise exist if an investor were attempting to assemble a block of
Common Stock in excess of 9.8% or 15%, as the case may be, of the
outstanding shares of beneficial interest of the Company or to otherwise
effect a change in control of the Company. The Board of Directors, in its
sole discretion, may waive the Ownership Limit if it is satisfied that
ownership by such shareholders in excess of such limits will not jeopardize
the Company's status as a REIT under the Code or in the event it determines
that it is no longer in the best interests of the Company to be a REIT. A
transfer of Common Stock to a person who, as a result of the transfer,
violates the Ownership Limit may not be effective under some circumstances.
Shareholder Rights Agreement. The Company has a shareholders' rights
plan (the "Shareholder Rights Agreement") which grants the holders of the
Common Stock rights which generally become exercisable if (i) a person
becomes an "acquiring person" by acquiring 10% or more of the Common Stock,
or (ii) a person commences a tender offer that would result in that person
owning 10% or more of the Common Stock. In the event a person becomes an
"acquiring person," each holder of a right (other than the acquiring
person) would be entitled to acquire such number of preferred shares of the
Company which are equivalent to the Common Stock having a value of twice
the then-current exercise price of the right. If the Company is acquired
in a merger or other business combination transaction after any such event,
each holder of a right would then be entitled to purchase, at the then-
current exercise price, shares of the acquiring company's common stock
having a value of twice the exercise price of the right. The Shareholder
Rights Agreement may have the effect of delaying or preventing a change in
control of the Company.
Other Limitations. Certain other limitations could have the effect of
discouraging a takeover or other transaction in which holders of some, or a
majority, of the outstanding Common Stock might receive a premium for their
Common Stock over the then prevailing market price or which such holders
might believe to be otherwise in their best interest. The issuance of
preferred stock could have the effect of delaying or preventing a change in
control of the Company even if a change in control were in the
shareholders' interest. In addition, the Maryland General Corporation Law
(the "MGCL") imposes certain restrictions and requires certain procedures
<PAGE>
with respect to the acquisition of certain levels of share ownership and
business combinations, including combinations with interested shareholders.
These provisions of the MGCL would have the effect of delaying or
preventing a change in control of the Company even if a change in control
were in the shareholders' interest. In addition, under the Operating
Partnership's agreement of limited partnership, in general the Company may
not merge, consolidate or engage in any combination with another person or
sell all or substantially all of its assets unless such transaction
includes the merger of the Operating Partnership, which requires the
approval of the holders of 75% of the limited partnership interests
thereof. If the Company were to own less than 75% of the limited
partnership interests in the Operating Partnership, this provision of the
limited partnership agreement could have the effect of delaying or
preventing the Company from engaging in certain change of control
transactions.
Adverse Consequences of Failure to Qualify as a REIT
The Company intends to operate so as to qualify as a REIT under the
Code. Qualification as a REIT involves the application of highly technical
and complex Code provisions for which there are only limited judicial and
administrative interpretations. Continued qualification as a REIT depends
upon the Company's continuing ability to meet various requirements
concerning, among other things, the ownership of the outstanding stock, the
nature of its assets, the sources of its income and the amount of its
distributions to its shareholders. If the Company were to fail to qualify
as a REIT in any taxable year, the Company would not be allowed a deduction
for distributions to shareholders in computing its taxable income and would
be subject to federal income tax (including any applicable alternative
minimum tax) on its taxable income at regular corporate rates. Unless
entitled to relief under certain Code provisions, the Company also would be
ineligible for qualification as a REIT for the four taxable years following
the year during which qualification was lost. As a result, distributions
to the shareholders would be reduced for each of the years involved.
Although the Company currently intends to operate in a manner designed to
qualify as a REIT, it is possible that future economic, market, legal, tax
or other considerations may cause the Board of Directors to revoke the REIT
election.
Effect of Market Interest Rates on Price of Shares
One of the factors that may influence the price of the Common Stock in
public trading markets is the annual yield on Common Stock as compared to
yields on other financial instruments. Thus, an increase in market
interest rates will result in higher yields on other financial instruments,
which could adversely affect the market price of the Common Stock.
Legal Proceeding
Robert J. Amsdell, a former business associate of certain officers and
directors of the Company, including Robert J. Attea, Charles E. Lannon,
Kenneth F. Myszka and David L. Rogers, filed a lawsuit against the Company
on June 13, 1995 in the United States District Court for the Northern
District of Ohio in connection with the formation of the Company as a REIT
and related transactions, as well as the Initial Offering. On April 29,
1996, Mr. Amsdell filed a first amended complaint and on September 24,
1997, a second amended complaint was filed. The complaint alleges, among
<PAGE>
other things, breach of fiduciary duty, breach of contract, breach of
general partnership/joint venture arrangement, fraud and deceit, breach of
duty of good faith and other causes of action including a declaratory
judgment as to Mr. Amsdell's continuing interest in the Company.
Mr. Amsdell is seeking money damages in excess of $15 million, as well as
punitive damages and declaratory and injunctive relief (including the
imposition of a constructive trust on assets of the Company in which
Mr. Amsdell claims to have a continuing interest) and an accounting. The
first amended complaint also added Messrs. Attea, Lannon, Myszka and Rogers
as additional defendants. The parties are currently involved in discovery.
The Company intends to vigorously defend the lawsuit. Messrs. Attea,
Lannon, Myszka and Rogers have agreed to indemnify the Company for any loss
arising from the lawsuit. The Company believes that the actual amount of
Mr. Amsdell's recovery in this matter, if any, would be within the ability
of these individuals to provide indemnification. The Company does not
believe that the lawsuit will have a material adverse effect upon the
Company.
THE COMPANY AND THE OPERATING PARTNERSHIP
General
Sovran Self Storage, Inc. is a self-administered and self-managed real
estate investment trust ("REIT") which acquires, owns and manages self
storage properties. The Company was formed to continue the business of its
predecessor companies which had engaged in the self storage business since
1985. The Company owns an indirect interest in each of the Properties
through the Operating Partnership of which the Company holds a 96.53%
economic interest consisting of a 94.81% direct limited partnership
interest and a 1.72% general partnership interest owned by Sovran Holdings,
Inc., a wholly-owned subsidiary of the Company. Unaffiliated third parties
own collectively a 3.47% limited partnership interest in the Operating
Partnership. The Operating Partnership owns a 100% fee simple interest in
each of the Properties. The Company believes that this structure, commonly
known as an umbrella partnership real estate investment trust ("UPREIT"),
facilitates the Company's ability to acquire properties by using units of
the Operating Partnership as currency in property acquisitions.
As of April 20, 1998, the Company owned and operated 177 self-storage
properties consisting of approximately 9.7 million net rentable square
feet, situated in 19 states, primarily the Eastern United States and Texas.
As of December 31 1997, the Properties had a weighted average occupancy of
85.1% and a weighted average annual rent per occupied square foot of $7.67.
The Company believes that it is one of the largest operators of self-
storage properties in the United States based on facilities owned.
The Company seeks to increase cash flow and enhance shareholder value
through aggressive management of the Properties and selective acquisition
of new self-storage properties. Aggressive property management entails
increasing rents, increasing occupancy levels, strictly controlling costs,
maximizing collections, strategically expanding and improving the
Properties and, should economic conditions warrant, developing new
properties. The Company believes that there continue to be significant
opportunities for growth through acquisitions, and constantly seeks to
acquire self-storage properties located primarily in the Eastern United
States that are susceptible to realization of increased economies of scale
and enhanced performance through the application of the Company's
management expertise.
<PAGE>
The Company was incorporated on April 19, 1995 under Maryland law.
The Operating Partnership was formed on June 1, 1995 under Delaware law.
The Company's Common Stock has traded on the New York Stock Exchange since
the completion of the Company's initial public offering on June 26, 1995.
The Company's and the Operating Partnership's principal executive offices
are located at 5166 Main Street, Williamsville, New York 14221, and its
telephone number is (716) 633-1850. The Company and the Operating
Partnership also maintain a regional office in Atlanta, Georgia.
USE OF PROCEEDS
The Company is required by the terms of the partnership agreement of
the Operating Partnership to invest the net proceeds of any sale of Common
Stock or Preferred Stock in the Operating Partnership in exchange for
additional units of limited partnership of the Operating Partnership
("Units"). As will be more fully described in the applicable Prospectus
Supplement, the Company and the Operating Partnership intend to use the net
proceeds from the sale of Securities for one or more of the following:
repayment of indebtedness, acquisition of in new self storage facilities,
maintenance and improvement of currently owned Properties and general
corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company and the Operating
Partnership's and their predecessor's consolidated ratios of earnings to
fixed charges for the periods shown:
Company and Operating Partnership Predecessors
Year ended December 31,
January 1, 1995
Year ended December 31, to
1997 1996 1995 June 25, 1995 1994 1993 1992 1991
9.43 7.56 21.88 1.09 1.31 0.84 0.53 0.31
The ratios of earnings to fixed charges were computed by dividing
earnings by fixed charges. For this purpose, earnings consist of pre-tax
income from continuing operations plus fixed charges. Fixed charges
consist of interest expense and the amortization of debt issuance costs.
To date, the Company has not issued any Preferred Stock; therefore, the
ratios of earnings to combined fixed charges and preferred stock dividend
requirements are the same as the ratios of earnings to fixed charges
presented above.
DESCRIPTION OF DEBT SECURITIES
General
The Company conducts its business principally through the Operating
Partnership. Consequently, the Operating Partnership, and not the Company,
will issue the Debt Securities. The Debt Securities will be direct
<PAGE>
unsecured obligations of the Operating Partnership and may be either senior
Debt Securities ("Senior Debt Securities") or subordinated Debt Securities
("Subordinated Debt Securities"). The Debt Securities will be issued under
one or more indentures, each dated as of a date prior to the issuance of
the Debt Securities to which it relates. Senior Debt Securities and
Subordinated Debt Securities may be issued pursuant to separate indentures
(respectively, a "Senior Indenture" and a "Subordinated Indenture"), in
each case between the Operating Partnership and a trustee (a "Trustee"),
which may be the same Trustee, and in the form that has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part,
subject to such amendments or supplements as may be adopted from time to
time. The Senior Indenture and the Subordinated Indenture, as amended or
supplemented from time to time, are sometimes hereinafter referred to
collectively as the "Indentures." The Indentures will be subject to and
governed by the Trust Indenture Act of 1939, as amended (the "TIA"). The
statements made under this heading relating to the Debt Securities and the
Indentures are summaries of the anticipated provisions thereof, do not
purport to be complete and are qualified in their entirety by reference to
the Indentures and such Debt Securities.
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the applicable Indenture.
Terms
The indebtedness represented by the Senior Debt Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Operating Partnership. The indebtedness represented by Subordinated Debt
Securities will be subordinated in right of payment to the prior payment in
full of Senior Indebtedness of the Company as described under
"--Subordination." The particular terms of the Debt Securities offered by a
Prospectus Supplement will be described in the applicable Prospectus
Supplement, along with any applicable modifications of or additions to the
general terms of the Debt Securities as described herein and in the
applicable Indenture and any applicable federal income tax considerations.
Accordingly, for a description of the terms of any series of Debt
Securities, reference must be made to both the Prospectus Supplement
relating thereto and the description of the Debt Securities set forth in
this Prospectus.
Except as set forth in any Prospectus Supplement, the Debt Securities
may be issued without limit as to aggregate principal amount, in one or
more series, in each case as established from time to time by the Operating
Partnership or as set forth in the applicable Indenture or in one or more
indentures supplemental to such Indenture. All Debt Securities of one
series need not be issued at the same time and, unless otherwise provided,
a series may be reopened, without the consent of the holders of the Debt
Securities of such series, for issuance of additional Debt Securities of
such series.
Each Indenture will provide that the Operating Partnership may, but
need not, designate more than one Trustee thereunder, each with respect to
one or more series of Debt Securities. Any Trustee under an Indenture may
resign or be removed with respect to one or more series of Debt Securities,
and a successor Trustee may be appointed to act with respect to such
series. In the event that two or more persons are acting as Trustee with
respect to different series of Debt Securities, each such Trustee shall be
a Trustee of a trust under the applicable Indenture separate and apart from
<PAGE>
the trust administered by any other Trustee, and, except as otherwise
indicated herein, any action described herein to be taken by each Trustee
may be taken by each such Trustee with respect to, and only with respect
to, the one or more series of Debt Securities for which it is Trustee under
the applicable Indenture.
The following summaries set forth certain general terms and provisions
of the Indentures and the Debt Securities. The Prospectus Supplement
relating to the series of Debt Securities being offered will contain
further terms of such Debt Securities, including the following specific
terms:
(1) The title of such Debt Securities and whether such Debt Securities
are Senior Debt Securities or Subordinated Debt Securities;
(2) The aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued and, if other than
the principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be payable;
(5) The rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the persons
to whom such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) The place or places where the principal of (and premium or Make-
Whole Amount (as defined in the Indenture), if any) and interest, if any,
on such Debt Securities will be payable, where such Debt Securities may be
surrendered for registration of transfer or exchange and where notices or
demands to or upon the Operating Partnership in respect of such Debt
Securities and the applicable Indenture may be served;
(8) The period or periods, if any, within which, the price or prices
at which and the other terms and conditions upon which such Debt Securities
may, pursuant to any optional or mandatory redemption provisions, be
redeemed, as a whole or in part, at the option of the Operating
Partnership;
(9) The obligation, if any, of the Operating Partnership to redeem,
repay or purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
<PAGE>
(10) If other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency
or currencies, and the terms and conditions relating thereto;
(11) Whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any, including any amount due upon redemption, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, but need not be, based on the yield on or trading price of
other securities, including United States Treasury securities, or on a
currency, currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be determined;
(12) Whether the principal of (and premium or Make-Whole Amount, if
any) or interest on the Debt Securities of the series are to be payable, at
the election of the Operating Partnership or a holder thereof, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Debt Securities are denominated or
stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner
of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency
unit or units or composite currency or currencies in which such Debt
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 Debt Securities are to be so payable;
(13) Provisions, if any, granting special rights to the holders of
Debt Securities of the series upon the occurrence of such events as may be
specified;
(14) Any deletions from, modifications of or additions to the Events
of Default (as defined in the Indenture) or covenants of the Operating
Partnership with respect to Debt Securities of the series, whether or not
such Events of Default or covenants are consistent with the Events of
Default or covenants described herein;
(15) Whether and under what circumstances the Operating Partnership
will pay any additional amounts on such Debt Securities in respect of any
tax, assessment or governmental charge and, if so, whether the Operating
Partnership will have the option to redeem such Debt Securities in lieu of
making such payment;
(16) Whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Debt Securities
of the series are to be issuable initially in temporary global form and
whether any Debt Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Debt 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 the Indenture,
and, if Registered Securities of the series are to be issuable as a Global
Security (as defined), the identity of the depository for such series;
<PAGE>
(17) The date as of which any Bearer Securities of the series and any
temporary Global Security representing outstanding Debt Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) The Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary Global Security on an Interest Payment Date will be paid if other
than in the manner provided in the Indenture;
(19) The applicability, if any, of the defeasance and covenant
defeasance provisions of the Indenture to the Debt Securities of the
series;
(20) If the Debt Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) Any other terms of the series (which terms shall not be
inconsistent with the provisions of the Indenture under which the Debt
Securities are issued).
If so provided in the applicable Prospectus Supplement, the Debt
Securities may be issued at a discount below their principal amount and
provide for less than the entire principal amount thereof to be payable
upon declaration of acceleration of the maturity thereof ("Original Issue
Discount Securities"). In such cases, all material U.S. federal income tax,
accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Except as described under "--Merger, Consolidation or Sale of Assets"
or as may be set forth in any Prospectus Supplement, the Debt Securities
will not contain any provisions that would limit the ability of the
Operating Partnership to incur indebtedness or that would afford holders of
Debt Securities protection in the event of (i) a highly leveraged or
similar transaction involving the Operating Partnership, the management of
the Operating Partnership or the Company, or any affiliate of any such
party, (ii) a change of control, or (iii) a reorganization, restructuring,
merger or similar transaction involving the Operating Partnership that may
adversely affect the holders of the Debt Securities. In addition, subject
to the limitations set forth under "--Merger, Consolidation or Sale of
Assets," the Operating Partnership may, in the future, enter into certain
transactions, such as the sale of all or substantially all of its assets or
the merger or consolidation of the Operating Partnership, that would
increase the amount of the Operating Partnership's indebtedness or
substantially reduce or eliminate the Operating Partnership's indebtedness
or substantially reduce or eliminate the Operating Partnership's assets,
which may have an adverse effect on the Operating Partnership's ability to
service its indebtedness, including the Debt Securities. Neither Maryland
General Corporation Law nor the governing instruments of the Company and
<PAGE>
the Operating Partnership define the term "substantially all" in connection
with the sale of assets. Additionally, Maryland cases interpreting the
words "substantially all" all rely heavily upon the facts and circumstances
of the particular case. Consequently, to determine whether a sale of
"substantially all" of the Operating Partnership's assets has occurred, a
holder of Debt Securities must review the financial and other information
disclosed by the Operating Partnership to the public. Restrictions on
ownership and transfers of the Common Shares and Preferred Shares are
designed to preserve the Company's status as a REIT and, therefore, may act
to prevent or hinder a change of control. See "Limits on Ownership of
Shares of Beneficial Interest." Reference is made to the applicable
Prospectus Supplement for information with respect to any deletions from,
modifications of, or additions to, the events of default or covenants that
are described below, including any addition of a covenant or other
provision providing event risk or similar protection.
Denomination, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus Supplement,
the Debt Securities of any series will be issuable in denominations of
$1,000 and integral multiples thereof. Where Debt Securities of any series
are issued in bearer form, the special restrictions and considerations,
including special offering restrictions and special federal income tax
considerations, applicable to any such Debt Securities and to payment on
and transfer and exchange of such Debt Securities will be described in the
applicable Prospectus Supplement. Bearer Debt Securities will be
transferable by delivery.
Unless otherwise specified in the applicable Prospectus Supplement,
the principal of (and applicable premium or Make-Whole Amount, if any) and
interest on any series of Debt Securities will be payable at the corporate
trust office of the applicable Trustee, the address of which will be stated
in the applicable Prospectus Supplement; provided that, at the option of
the Operating Partnership, payment of interest may be made by check mailed
to the address of the person entitled thereto as it appears in the
applicable register for such Debt Securities or by wire transfer of funds
to such person at an account maintained within the United States.
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security in registered form ("Defaulted
Interest") will forthwith cease to be payable to the holder on the
applicable Regular Record Date and may either be paid to the Person in
whose name such Debt Security is registered at the close of business on a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee, in which case notice thereof
shall be given to the holder of such Debt Security not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner, all as more completely described in the applicable
Indenture.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
any authorized denomination of other Debt Securities of the same series and
of a like aggregate principal amount and tenor upon surrender of such Debt
Securities at the corporate trust office of the applicable Trustee or at
the office of any transfer agent designated by the Operating Partnership
for such purpose. In addition, subject to certain limitations imposed upon
<PAGE>
Debt Securities issued in book-entry form, the Debt Securities of any
series may be surrendered for registration of transfer or exchange thereof
at the corporate trust office of the applicable Trustee or at the office of
any transfer agent designated by the Operating Partnership for such
purpose. Every Debt Security in registered form surrendered for
registration of transfer or exchange must be duly endorsed or accompanied
by a written instrument of transfer, and the person requesting such action
must provide evidence of title and identity satisfactory to the applicable
Trustee or transfer agent. No service charge will be made for any
registration of transfer or exchange of any Debt Securities, but the
Operating Partnership may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. If the
applicable Prospectus Supplement refers to any transfer agent (in addition
to the applicable Trustee) initially designated by the Operating
Partnership with respect to any series of Debt Securities, the Operating
Partnership may at any time rescind the designation of any such transfer
agent or approve a change in the location through which any such transfer
agent acts, except that the Operating Partnership will be required to
maintain a transfer agent in each place of payment for such series. The
Operating Partnership may at any time designate additional transfer agents
with respect to any series of Debt Securities.
Neither the Operating Partnership nor any Trustee shall be required to
(a) issue, register the transfer of or exchange Debt Securities of any
series during a period beginning at the opening of business 15 days before
the selection of any Debt Securities for redemption and ending at the close
of business on the day of mailing of the notice of redemption; (b) register
the transfer of or exchange any Debt Security, or portion thereof, so
selected for redemption, in whole or in part, except the unredeemed portion
of any Debt Security being redeemed in part; or (c) issue, register the
transfer of or exchange any Debt Security that has been surrendered for
repayment at the option of the holder, except the portion, if any, of such
Debt Security not to be so repaid.
Payment in respect of Debt Securities in bearer form will be made in
the currency and in the manner designated in the applicable Prospectus
Supplement, subject to any applicable laws and regulations, at such paying
agencies outside the United States as the Operating Partnership may appoint
from time to time. The paying agents outside the United States, if any,
initially appointed by the Operating Partnership for a series of Debt
Securities will be named in the Prospectus Supplement. Unless otherwise
provided in the applicable Prospectus Supplement, the Operating Partnership
may at any time designate additional paying agents or rescind the
designation of any paying agents, except that, if Debt Securities of a
series are issuable in registered form, the Operating Partnership will be
required to maintain at least one paying agent in each place of payment for
such series and if Debt Securities of a series are issuable in bearer form,
the Operating Partnership will be required to maintain at least one paying
agent in a place of payment outside the United States where Debt Securities
of such series and any coupons appertaining thereto may be presented and
surrendered for payment.
Merger, Consolidation or Sale of Assets
The Indentures provide that the Operating Partnership may, without the
consent of the holders of any outstanding Debt Securities, consolidate
with, or sell, lease or convey all or substantially all of its assets to,
<PAGE>
or merge with or into, any other entity provided that (i) either the
Operating Partnership shall be the continuing entity, or the successor
entity (if other than the Operating Partnership) formed by or resulting
from any such consolidation or merger or which shall have received the
transfer of such assets, and which is organized under the laws of any
domestic jurisdiction and assumes (A) the Operating Partnership's
obligations to pay principal of (and premium, if any) and interest on all
of the Debt Securities and (B) the due and punctual performance and
observance of all of the covenants and conditions contained in each
Indenture; (ii) immediately after giving effect to such transaction and
treating any indebtedness that becomes an obligation of the Operating
Partnership or any subsidiary or any subsidiary as a result thereof as
having been incurred by the Operating Partnership or such subsidiary at the
time of such transaction, no event of default under the Indentures, and no
event which, after notice or the lapse of time, or both, would become such
an event of default, shall have occurred and be continuing; and (iii) an
officers' certificate and legal opinion covering such conditions shall be
delivered to each Trustee.
Certain Covenants
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Debt Securities that are not described
in this Prospectus. Unless otherwise indicated in the applicable
Prospectus Supplement, Senior Debt Securities will include the following
covenants of the Operating Partnership:
Existence. Except as permitted under "--Merger, Consolidation or
Sale of Assets," the Indentures will require the Operating Partnership to
do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights and franchises; provided, however,
that the Operating Partnership shall not be required to preserve any right
or franchise if it determines that the preservation thereof is no longer
desirable in the conduct of its business.
Maintenance of Properties. The Indentures will require the Operating
Partnership to cause all of its material properties used or useful in the
conduct of its business or the business of any subsidiary to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Operating Partnership may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Operating Partnership
and its subsidiaries shall not be prevented from selling or otherwise
disposing of their properties for value in the ordinary course of business.
Insurance. The Indentures will require the Operating Partnership to
cause each of its and its subsidiaries' insurable properties to be insured
against loss or damage at least equal to their then full insurable value
with insurers of recognized responsibility and, if described in the
applicable Prospectus Supplement, having a specified rating from a
recognized insurance rating service.
Payment of Taxes and Other Claims. The Indentures will require the
Operating Partnership to pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes,
<PAGE>
assessments and governmental charges levied or imposed upon it or any
subsidiary or upon the income, profits or property of the Operating
Partnership or any subsidiary and (ii) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon
the property of the Operating Partnership or any subsidiary; provided,
however, that the Operating Partnership 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.
Events of Default, Notice and Waiver
Unless otherwise provided in the applicable Prospectus Supplement,
each Indenture will provide that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder:
(a) default in the payment of any interest on any Debt Security of such
series when such interest becomes due and payable that continues for a
period of 30 days; (b) default in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Debt Security of such series
when due and payable; (c) default in making any sinking fund payment as
required for any Debt Security of such series; (d) default in the
performance, or breach, of any other covenant or warranty of the Operating
Partnership in the applicable Indenture with respect to the Debt Securities
of such series and continuance of such default or breach for a period of 60
days after written notice as provided in the Indenture; (e) default under
any bond, debenture, note, mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Operating Partnership (or by any
Subsidiary, the repayment of which the Operating Partnership has guaranteed
or for which the Company is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at least
$25,000,000, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or annulled,
within a period of 30 days after written notice to the Operating
Partnership as provided in the Indenture; (f) certain events of bankruptcy,
insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Operating Partnership or any Significant
Subsidiary; and (g) any other event of default provided with respect to a
particular series of Debt Securities. The term "Significant Subsidiary"
has the meaning ascribed to such term in Regulation S-X promulgated under
the Securities Act.
If an Event of Default under any Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing,
then in every such case the applicable Trustee or the holders of not less
than 25% in principal amount of the Debt Securities of that series will
have the right to declare the principal amount (or, if the Debt Securities
of that series are Original Issue Discount Securities or indexed
securities, such portion of the principal amount as may be specified in the
terms thereof) of, and premium or Make-Whole Amount, if any, on, all the
Debt Securities of that series to be due and payable immediately by written
notice thereof to the Operating Partnership (and to the applicable Trustee
if given by the holders). However, at any time after such a declaration of
acceleration with respect to Debt Securities of such series has been made,
<PAGE>
but before a judgment or decree for payment of the money due has been
obtained by the applicable Trustee, the holders of not less than a majority
in principal amount of outstanding Debt Securities of such series may
rescind and annul such declaration and its consequences if (a) the
Operating Partnership shall have deposited with the applicable Trustee all
required payments of the principal of (and premium or Make-Whole Amount, if
any) and interest on the Debt Securities of such series, plus certain fees,
expenses, disbursements and advances of the applicable Trustee and (b) all
Events of Default, other than the non-payment of accelerated principal (or
specified portion thereof and the premium or Make-Whole Amount, if any),
with respect to Debt Securities of such series have been cured or waived as
provided in such Indenture. The Indentures will also provide that the
holders of not less than a majority in principal amount of the outstanding
Debt Securities of any series may waive any past default with respect to
such series and its consequences, except a default (i) in the payment of
the principal of (or premium or Make-Whole Amount, if any) or interest on
any Debt Security of such series or (ii) in respect of a covenant or
provision contained in the applicable Indenture that cannot be modified or
amended without the consent of the holder of each outstanding Debt Security
affected thereby.
The Indentures will require each Trustee to give notice to the holders
of Debt Securities within 90 days of a default under the applicable
Indenture unless such default shall have been cured or waived; provided,
however, that such Trustee may withhold notice to the holders of any series
of Debt Securities of any default with respect to such series (except a
default in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of
such series) if specified responsible officers of such Trustee consider
such withholding to be in the interest of such holders.
The Indentures will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect
to such Indenture or for any remedy thereunder, except in the case of
failure of the applicable Trustee, for 60 days, to act after it has
received a written request to institute proceedings in respect of an Event
of Default from the holders of not less than 25% in principal amount of the
outstanding Debt Securities of such series, as well as an offer of
indemnity reasonably satisfactory to it. This provision will not prevent,
however, any holder of Debt Securities from instituting suit for the
enforcement of payment of the principal of (and premium or Make-Whole
Amount, if any) and interest on such Debt Securities at the respective due
dates or redemption dates thereof.
The Indentures will provide that, subject to provisions in each
Indenture relating to its duties in case of default, a Trustee will be
under no obligation to exercise any of its rights or powers under an
Indenture at the request or direction of any holders of any series of Debt
Securities then outstanding under such Indenture, unless such holders shall
have offered to the Trustee thereunder reasonable security or indemnity.
The holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under an Indenture, as the case may be) shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the applicable Trustee, or of exercising any trust or
power conferred upon such Trustee. However, a Trustee may refuse to follow
<PAGE>
any direction which is in conflict with any law or the applicable
Indenture, which may involve such Trustee in personal liability or which
may be unduly prejudicial to the holders of Debt Securities of such series
not joining therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership will be required to deliver to each Trustee a certificate,
signed by one of several specified officers of the Operating Partnership,
stating whether or not such officer has knowledge of any default under the
applicable Indenture and, if so, specifying each such default and the
nature and status thereof.
Modification of the Indentures
Modifications and amendments of an Indenture will be permitted to be
made only with the consent of the holders of not less than a majority in
principal amount of all outstanding Debt Securities issued under such
Indenture affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the
holder of each such Debt Security affected thereby, (a) change the stated
maturity of the principal of, or any installment of interest (or premium or
Make-Whole Amount, if any) on, any such Debt Security; (b) reduce the
principal amount of, or the rate or amount of interest on, or any premium
or Make-Whole Amount payable on redemption of, any such Debt Security, or
reduce the amount of principal of an Original Issue Discount Security that
would be due and payable upon declaration of acceleration of the maturity
thereof or would be provable in bankruptcy, or adversely affect any right
of repayment of the holder of any such Debt Security; (c) change the place
of payment, or the coin or currency, for payment of principal of, premium
or Make-Whole Amount, if any, or interest on any such Debt Security; (d)
impair the right to institute suit for the enforcement of any payment on or
with respect to any such Debt Security; (e) reduce the above-stated
percentage of outstanding Debt Securities of any series necessary to modify
or amend the applicable Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to
reduce the quorum or voting requirements set forth in the applicable
Indenture; (f) change the currency or currency unit in which any Debt
Security or any premium or interest thereon is payable; (g) in the case of
the Subordinated Indenture, modify the subordination provisions thereof in
a manner adverse to the holders of Subordinated Debt Securities of any
series then outstanding; or (h) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or
certain covenants, except to increase the required percentage to effect
such action or to provide that certain other provisions may not be modified
or waived without the consent of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series may, on behalf of all holders of
Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Operating Partnership with certain restrictive covenants
of the applicable Indenture.
Modifications and amendments of an Indenture will be permitted to be
made by the Operating Partnership and the respective Trustee thereunder
without the consent of any holder of Debt Securities for any of the
following purposes: (a) to evidence the succession of another person to the
Operating Partnership as obligor under such Indenture; (b) to add to the
<PAGE>
covenants of the Operating Partnership for the benefit of the holders of
all or any series of Debt Securities or to surrender any right or power
conferred upon the Operating Partnership in such Indenture; (c) to add
events of default for the benefit of the holders of all or any series of
Debt Securities; (d) to add or change any provisions of an Indenture to
facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided that such action shall not
adversely affect the interests of the holders of the Debt Securities of any
series in any material respect; (e) to change or eliminate any provisions
of an Indenture, provided that any such change or elimination shall become
effective only when there are no Debt Securities outstanding of any series
created prior thereto which are entitled to the benefit of such provision;
(f) to secure the Debt Securities; (g) to establish the form or terms of
Debt Securities of any series; (h) to provide for the acceptance of
appointment by a successor Trustee or facilitate the administration of the
trusts under an Indenture by more than one Trustee; (i) to cure any
ambiguity, defect or inconsistency in an Indenture, provided that such
action shall not adversely affect the interests of holders of Debt
Securities of any series issued under such Indenture; or (j) to supplement
any of the provisions of an Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities,
provided that such action shall not adversely affect the interests of the
holders of the outstanding Debt Securities of any series.
The Indentures will provide that in determining whether the holders of
the requisite principal amount of outstanding Debt Securities of a series
have given any request, demand, authorization, direction, notice, consent
or waiver thereunder or whether a quorum is present at a meeting of holders
of Debt Securities, (a) the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon declaration of acceleration of the maturity thereof, (b)
the principal amount of any Debt Security denominated in a foreign currency
that shall be deemed Outstanding shall be the U.S. dollar equivalent,
determined on the issue date for such Debt Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent on the issue date of such Debt Security of the amount
determined as provided in (a) above), (c) the principal amount of an
indexed security that shall be deemed outstanding shall be the principal
face amount of such indexed security at original issuance, unless otherwise
provided with respect to such indexed security pursuant such Indenture, and
(d) Debt Securities owned by the Operating Partnership or any other obligor
upon the Debt Securities or any affiliate of the Operating Partnership or
of such other obligor shall be disregarded.
The Indentures will contain provisions for convening meetings of the
holders of Debt Securities of a series. A meeting will be permitted to be
called at any time by the applicable Trustee, and also, upon request, by
the Operating Partnership or the holders of at least 25% in principal
amount of the outstanding Debt Securities of such series, in any such case
upon notice given as provided in such Indenture. Except for any consent
that must be given by the holder of each Debt Security affected by certain
modifications and amendments of an Indenture, any resolution presented at a
meeting or adjourned meeting duly reconvened at which a quorum is present
may be adopted by the affirmative vote of the holders of a majority in
principal amount of the outstanding Debt Securities of that series;
<PAGE>
provided, however, that, except as referred to above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the holders of a
specified percentage, which is less than a majority, in principal amount of
the outstanding Debt Securities of a series may be adopted at a meeting or
adjourned meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of the holders of such specified percentage
in principal amount of the outstanding Debt Securities of that series. Any
resolution passed or decision taken at any meeting of holders of Debt
Securities of any series duly held in accordance with an Indenture will be
binding on all holders of Debt Securities of that series. The quorum at
any meeting called to adopt a resolution, and at any reconvened meeting,
will be persons holding or representing a majority in principal amount of
the outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver
which may be given by the holders of not less than a specified percentage
in principal amount of the outstanding Debt Securities of a series, the
persons holding or representing such specified percentage in principal
amount of the outstanding Debt Securities of such series will constitute a
quorum.
Notwithstanding the foregoing provisions, the Indentures will provide
that if any action is to be taken at a meeting of holders of Debt
Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver and other action that
such Indenture expressly provides may be made, given or taken by the
holders of a specified percentage in principal amount of all outstanding
Debt Securities affected thereby, or of the holders of such series and one
or more additional series: (a) there shall be no minimum quorum requirement
for such meeting, and (b) the principal amount of the outstanding Debt
Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action 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 such Indenture.
Certain Definitions
"Indebtedness" means, with respect to any person, (a) any obligation
of such person to pay the principal of, premium, if any, interest on
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such person, whether or not a
claim for such post-petition interest is allowed in such proceeding),
penalties, reimbursement or indemnification amounts, fees, expenses or
other amounts relating to any indebtedness of such person (i) for borrowed
money (whether or not the recourse of the lender is to the whole of the
assets of such person or only to a portion thereof), (ii) evidenced by
notes, debentures or similar instruments (including purchase money
obligations) given in connection with the acquisition of any property or
assets (other than trade accounts payable for inventory or similar property
acquired in the ordinary course of business), including securities, for the
payment of which such person is liable, directly or indirectly, or the
payment of which is secured by a lien, charge or encumbrance on property or
assets of such person, (iii) for goods, materials or services purchased in
the ordinary course of business (other than trade accounts payable arising
in the ordinary course of business), (iv) with respect to letters of credit
or bankers acceptances issued for the account of such person or performance
<PAGE>
bonds, (v) for the payment of money relating to a Capitalized Lease
Obligation (as defined in the Indenture), or (vi) under interest rate
swaps, caps or similar agreements and foreign exchange contracts, currency
swaps or similar agreements; (b) any liability of others of the kind
described in the preceding clause (a) which such person has guaranteed or
which is otherwise its legal liability; and (c) any and all deferrals,
renewals, extensions and refunding of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a) or (b).
"Senior Indebtedness" means Indebtedness of the Operating Partnership,
whether outstanding on the date of issue of any Subordinated Debt
Securities or thereafter created, incurred, assumed or guaranteed by the
Operating Partnership, other than the following: (a) any Indebtedness as to
which, in the instrument evidencing such Indebtedness or pursuant to which
such Indebtedness was issued, it is expressly provided that such
Indebtedness is subordinate in right of payment to all indebtedness of the
Operating Partnership not expressly subordinated to such Indebtedness; (b)
any Indebtedness which by its terms refers explicitly to the Subordinated
Debt Securities and states that such Indebtedness shall not be senior,
shall be pari passu or shall be subordinated in right of payment to the
Subordinated Debt Securities; and (c) with respect to any series of
Subordinated Debt Securities, any Indebtedness of the Operating Partnership
evidenced by Subordinated Debt Securities of the same or of another series.
Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness shall not include: (x) Indebtedness of or amounts owed by the
Operating Partnership for compensation to employees, or for goods,
materials and services purchased in the ordinary course of business, or (y)
Indebtedness of the Operating Partnership to a subsidiary of the Operating
Partnership.
Subordination
Unless otherwise provided in the applicable Prospectus Supplement,
Subordinated Debt Securities will be subject to the following subordination
provisions.
The payment of the principal of, interest on, or any other amounts due
on, the Subordinated Debt Securities will be subordinated in right of
payment to the prior payment in cash in full of all Senior Indebtedness of
the Operating Partnership. No payment on account of the principal of,
redemption of, interest on or any other amounts due on the Subordinated
Debt Securities and no redemption, purchase or other acquisition of the
Subordinated Debt Securities may be made, unless (a) full payment in cash
of amounts then due for principal, sinking funds, interest (including
interest accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Operating Partnership, whether or not a
claim for such post-petition interest is allowed in such proceeding),
penalties, reimbursement or indemnification amounts, fees and expenses, and
of all other amounts then due on all Senior Indebtedness shall have been
made or duly provided for pursuant to the terms of the instrument governing
such Senior Indebtedness, and (b) at the time of, or immediately after
giving effect to, any such payment, redemption, purchase or other
acquisition, there shall not exist under any Senior Indebtedness or any
agreement pursuant to which any Senior Indebtedness has been issued, any
default which shall not have been cured or waived and which shall have
resulted in the full amount of such Senior Indebtedness being declared due
<PAGE>
and payable and not rescinded. In addition, the Subordinated Indenture
provides that, if holders of any Senior Indebtedness notify the Operating
Partnership and the Subordinated Trustee that a default has occurred giving
the holders of such Senior Indebtedness the right to accelerate the
maturity thereof, no payment on account of principal, sinking fund or other
redemption, interest or any other amounts due on the Subordinated Debt
Securities and no purchase, redemption or other acquisition of the
Subordinated Debt Securities will be made for the period (the "Payment
Blockage Period") commencing on the date such notice is received and ending
on the earlier of (i) the date on which such event of default shall have
been cured or waived or (ii) 180 days from the date such notice is
received. Notwithstanding the foregoing, only one payment blockage notice
with respect to the same event of default or any other events of default
existing and known to the person giving such notice at the time of such
notice on the same issue of Senior Indebtedness may be given during any
period of 360 consecutive days. No new Payment Blockage Period may be
commenced by the holders of Senior Indebtedness during any period of 360
consecutive days unless all events of default which triggered the preceding
Payment Blockage Period have been cured or waived. Upon any distribution
of its assets in connection with any dissolution, winding-up, liquidation
or reorganization of the Operating Partnership, all Senior Indebtedness
must be paid in full in cash before the holders of the Subordinated Debt
Securities are entitled to any payments whatsoever.
The Subordinated Indenture does not restrict the amount of Senior
Indebtedness or other indebtedness of the Operating Partnership or any
Subsidiary. As a result of these subordination provisions, in the event of
the Operating Partnership's insolvency, holders of the Subordinated Debt
Securities may recover ratably less than general creditors of the Company.
If this Prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the Operating
Partnership's most recent fiscal quarter.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise indicated in the applicable Prospectus Supplement,
the Operating Partnership will be permitted, at its option, to discharge
certain obligations to holders of any series of Debt Securities issued
under any Indenture that have not already been delivered to the applicable
Trustee for cancellation and that either have become due and payable or
will become due and payable within one year (or scheduled for redemption
within one year) by irrevocably depositing with the applicable Trustee, in
trust, funds in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities are payable
in an amount sufficient to pay the entire indebtedness on such Debt
Securities in respect of principal (and premium or Make-Whole Amount, if
any) and interest to the date of such deposit (if such Debt Securities have
become due and payable) or to the stated maturity or redemption date, as
the case may be.
The Indentures will provide that, unless otherwise indicated in the
applicable Prospectus Supplement, the Operating Partnership may elect
either (a) to defease and be discharged from any and all obligations with
respect to such Debt Securities (except for the obligations to register the
<PAGE>
transfer or exchange of such Debt Securities, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of such Debt Securities, and to hold moneys for
payment in trust) ("defeasance") or (b) to be released from certain
obligations with respect to such Debt Securities under the applicable
Indenture (including the restrictions described under "--Certain
Covenants") or, if provided in the applicable Prospectus Supplement, its
obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute an Event of Default with respect
to such Debt Securities ("covenant defeasance"), in either case upon the
irrevocable deposit by the Operating Partnership with the applicable
Trustee, in trust, of an amount, in such currency or currencies, currency
unit or units or composite currency or currencies in which such Debt
Securities are payable at stated maturity, or Government Obligations (as
defined below), or both, applicable to such Debt Securities, which through
the scheduled payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal of
(and premium or Make-Whole Amount, if any) and interest on such Debt
Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership has delivered to the applicable Trustee
an opinion of counsel (as specified in the applicable Indenture) to the
effect that the holders of such Debt Securities will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such opinion of counsel, in the case of defeasance, will be
required to refer to and be based upon a ruling received from or published
by the Internal Revenue Service or a change in applicable United States
federal income tax law occurring after the date of the Indenture. In the
event of such defeasance, the holders of such Debt Securities would
thereafter be able to look only to such trust fund for payment of principal
(and premium or Make-Whole Amount, if any) and interest.
"Government Obligations" means securities that are (a) direct
obligations of the United States of America or the government which issued
the foreign currency in which the Debt Securities of a particular series
are payable, for the payment of which its full faith and credit is pledged
or (b) obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the foreign currency in which the Debt Securities
of such series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America or such other government, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
<PAGE>
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Operating Partnership has deposited funds and/or Government
Obligations to effect defeasance or covenant defeasance with respect to
Debt Securities of any series, (a) the holder of a Debt Security of such
series is entitled to, and does, elect pursuant to the applicable Indenture
or the terms of such Debt Security to receive payment in a currency,
currency unit or composite currency other than that in which such deposit
has been made in respect of such Debt Security, or (b) a Conversion Event
(as defined below) occurs in respect of the currency, currency unit or
composite currency in which such deposit has been made, the indebtedness
represented by such Debt Security will be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit
or composite currency in which such Debt Security becomes payable as a
result of such election or such cessation of usage based on the applicable
market exchange rate. "Conversion Event" means the cessation of use of (i)
a currency, currency unit or composite currency both by the government of
the country which issued such currency and for the settlement of
transactions by a central bank or other public institutions of or within
the international banking community, (ii) the ECU both within the European
Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency
unit or composite currency other than the ECU for the purposes for which it
was established. Unless otherwise provided in the applicable Prospectus
Supplement, all payments of principal of (and premium or Make-Whole Amount,
if any) and interest on any Debt Security that is payable in a foreign
currency that ceases to be used by its government of issuance shall be made
in U.S. dollars.
In the event the Operating Partnership effects covenant defeasance
with respect to any Debt Securities and such Debt Securities are declared
due and payable because of the occurrence of any Event Default other than
the Event of Default described in clause (d) under "--Events of Default,
Notice and Waiver" with respect to specified sections of an Indenture
(which sections would no longer be applicable to such Debt Securities) or
described in clause (g) under "--Events of Default, Notice and Waiver" with
respect to any other covenant as to which there has been covenant
defeasance, the amount in such currency, currency unit or composite
currency in which such Debt Securities are payable, and Government
Obligations on deposit with the applicable Trustee, will be sufficient to
pay amounts due on such Debt Securities at the time of their stated
maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such of Event of
Default. However, the Operating Partnership would remain liable to make
payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect
to the Debt Securities of or within a particular series.
Book-Entry System
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities ("Global Securities") that will
be deposited with, or on behalf of, a depository (the "Depository")
<PAGE>
identified in the Prospectus Supplement relating to such series. Global
Securities, if any, issued in the United States are expected to be
deposited with The Depository Trust Company ("DTC"), as Depository. Global
Securities may be issued in fully registered form and may be issued in
either temporary or permanent form. Unless and until it is exchanged in
whole or in part for the individual Debt Securities represented thereby, a
Global Security may not be transferred except as a whole by the Depository
for such Global Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any nominee of such Depositor to a successor
Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. The Operating Partnership expects that unless
otherwise indicated in the applicable Prospectus Supplement, the following
provisions will apply to depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and
transfer system the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons
that have accounts with such Depository ("Participants"). Such accounts
shall be designated by the underwriters, dealers or agents with respect to
such Debt Securities or by Operating Partnership if such Debt Securities
are offered directly by the Operating Partnership. Ownership of beneficial
interests in such Global Security will be limited to Participants or
persons that may hold interests through Participants.
The Operating Partnership expects that, pursuant to procedures
established by DTC, ownership of beneficial interests in any Global
Security with respect to which DTC is the Depository will be shown on, and
the transfer of that ownership will be effected only through, records
maintained by DTC or its nominee (with respect to beneficial interests of
Participants) and records of Participants (with respect to beneficial
interests of persons who hold through Participants). Neither the Operating
Partnership nor the Trustee will have any responsibility or liability for
any aspect of the records of DTC or for maintaining, supervising or
reviewing any records of DTC or any of its Participants relating to
beneficial ownership interests in the Debt Securities. The laws of some
states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the
ability to own, pledge or transfer beneficial interest in a Global
Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable
Prospectus Supplement, owners of beneficial interest in a Global Security
will not be entitled to have any of the individual Debt Securities
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of any such Debt
Securities in definitive form and will not be considered the owners or
holders thereof under the applicable Indenture. Beneficial owners of Debt
Securities evidenced by a Global Security will not be considered the owners
<PAGE>
or holders thereof under the applicable Indenture for any purpose,
including with respect to the giving of any direction, instructions or
approvals to the Trustee thereunder. Accordingly, each person owning a
beneficial interest in a Global Security with respect to which DTC is the
Depository must rely on the procedures of DTC and, if such person is not a
Participant, on the procedures of the Participant through which such person
owns its interests, to exercise any rights of a holder under the applicable
Indenture. The Operating Partnership understands that, under existing
industry practice, if it requests any action of holders or if an owner of a
beneficial interest in a Global Security desires to give or take any action
which a holder is entitled to give or take under the applicable Indenture,
DTC would authorize the Participants holding the relevant beneficial
interest to give or take such action, and such Participants would authorize
beneficial owners through such Participants to give or take such actions or
would otherwise act upon the instructions of beneficial owners holding
through them.
Payments of principal of, any premium or Make-Whole Amount and any
interest on individual Debt Securities represented by a Global Security
registered in the name of a Depository or its nominee will be made to or at
the direction of the Depository or its nominee, as the case may be, as the
registered owner of the Global Security under the applicable Indenture.
Under the terms of the applicable Indenture, the Operating Partnership and
the Trustee may treat the persons in whose name Debt Securities, including
a Global Security, are registered as the owners thereof for the purpose of
receiving such payments. Consequently, neither the Operating Partnership
nor the Trustee has or will have any responsibility or liability for the
payment of such amounts to beneficial owners of Debt Securities (including
principal, premium or Make-Whole Amount, if any, and interest). The
Operating Partnership believes, however, that it is currently the policy of
DTC to immediately credit the accounts of relevant Participants with such
payments, in amounts proportionate to their respective holdings of
beneficial interests in the relevant Global Security as shown on the
records of DTC or its nominee. The Operating Partnership also expects that
payments by Participants to owners of beneficial interests in such Global
Security held through such Participants will be governed by standing
instructions and customary practices, as is the case with securities held
for the account of customers in bearer form or registered in street name,
and will be the responsibility of such Participants. Redemption notices
with respect to any Debt Securities represented by a Global Security will
be sent to the Depository or its nominee. If less than all of the Debt
Securities of any series are to be redeemed, the Operating Partnership
expects the Depository to determine the amount of the interest of each
Participant in such Debt Securities to be redeemed to be determined by lot.
None of the Operating Partnership, the Trustee, any Paying Agent or the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in the Global Security for such
Debt Securities or for maintaining any records with respect thereto.
Neither the Operating Partnership nor the Trustee will be liable for
any delay by the holders of a Global Security or the Depository in
identifying the beneficial owners of Debt Securities and the Operating
Partnership and the Trustee may conclusively rely on, and will be protected
in relying on, instructions from the holder of a Global Security or the
Depository for all purposes. The rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
<PAGE>
If a Depository for any Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository
is not appointed by the Operating Partnership within 90 days, the Operating
Partnership will issue individual Debt Securities in exchange for the
Global Security representing such Debt Securities. In addition, the
Operating Partnership may at any time and in its sole discretion, subject
to any limitations described in the Prospectus Supplement relating to such
Debt Securities, determine not to have any of such Debt Securities
represented by one or more Global Securities and in such event will issue
individual Debt Securities in exchange for the Global Security or
Securities representing such Debt Securities. Individual Debt Securities
so issued will be issued in denominations of $1,000 and integral multiples
thereof.
The Debt Securities of a series may also be issued in whole or in part
in the form of one or more bearer global securities (a "Bearer Global
Security") that will be deposited with a depository, or with a nominee for
such depository, identified in the applicable Prospectus Supplement. Any
such Bearer Global Securities may be issued in temporary or permanent form.
The specific terms and procedures, including the specific terms of the
depository arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global Securities will
be described in the applicable Prospectus Supplement.
Payment and Paying Agents
Unless otherwise specified in the applicable Prospectus Supplement,
the principal of (and applicable premium or Make-Whole Amount, if any) and
interest on any series of Debt Securities will be payable at the corporate
trust office of the Trustee, the address of which will be stated in the
applicable Prospectus Supplement; provided that, at the option of the
Operating Partnership, payment of interest may be made by check mailed to
the address of the person entitled thereto as it appears in the applicable
register for such Debt Securities or by wire transfer of funds to such
person at an account maintained within the United States.
All moneys paid by the Operating Partnership to a paying agent or a
Trustee for the payment of the principal of or any premium, Make-Whole
Amount or interest on any Debt Security which remain unclaimed at the end
of two years after such principal, premium, Make-Whole Amount or interest
has become due and payable will be repaid to the Operating Partnership, and
the holder of such Debt Security thereafter may look only to the Operating
Partnership for payment thereof.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities (the "Global Securities") that
will be deposited with, or on behalf of, a depositary identified in the
applicable Prospectus Supplement relating to such series. Global
Securities may be issued in either registered or bearer form and in either
temporary or permanent form. The specific terms of the depositary
arrangement with respect to a series of Debt Securities will be described
in the applicable Prospectus Supplement relating to such series.
<PAGE>
DESCRIPTION OF PREFERRED STOCK
The description of the Company's preferred stock, par value $.01 per
share ("Preferred Stock"), set forth below does not purport to be complete
and is qualified in its entirety by reference to the Company's Amended and
Restated Articles of Incorporation (the "Articles of Incorporation") and
Amended and Restated Bylaws (the "Bylaws").
General
Under the Articles of Incorporation, the Company has authority to
issue 10 million shares of Preferred Stock, none of which was outstanding
as of April 20, 1998. Shares of Preferred Stock may be issued from time to
time, in one or more series, as authorized by the Board of Directors of the
Company. Prior to issuance of shares of each series, the Board of
Directors is required by the Maryland General Corporation Law ("MGCL") and
the Company's Articles of Incorporation to fix for each series, the terms,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and
terms or conditions of redemption, as are permitted by Maryland law. The
Preferred Stock will, when issued, be fully paid and nonassessable and will
have no preemptive rights. The Board of Directors could authorize the
issuance of shares of Preferred Stock with terms and conditions that could
have the effect of discouraging a takeover or other transaction that
holders of Common Stock might believe to be in their best interests or in
which holders of some, or a majority, of the shares of Common Stock might
receive a premium for their shares over the then market price of such
shares of Common Stock.
Terms
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. The statements below describing the Preferred Stock
are in all respects subject to and qualified in their entirety by reference
to the applicable provisions of the Company's Articles of Incorporation and
Bylaws and any applicable amendment to the Articles of Incorporation
designating terms of a series of Preferred Stock (a "Designating
Amendment").
Reference is made to the Prospectus Supplement relating to the
Preferred Stock offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
<PAGE>
(6) The provision for a sinking fund, if any, for such Preferred
Stock;
(7) The provision for redemption, if applicable, of such Preferred
Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock, including the conversion price
(or manner of calculation thereof);
(10) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(11) A discussion of federal income tax considerations applicable to
such Preferred Stock;
(12) The relative ranking and preference of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company;
(13) Any limitations on issuance of any series of Preferred Stock
ranking senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company; and
(14) Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate to preserve
the status of the Company as a REIT.
Rank
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Stock of the Company, and to all equity securities ranking
junior to such Preferred Stock with respect to dividend rights or rights
upon liquidation, dissolution or winding up of the Company; (ii) on a
parity with all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank on a parity with the
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company; and (iii) junior to all equity
securities issued by the Company the terms of which specifically provide
that such equity securities rank senior to the Preferred Stock with respect
to dividend rights or rights upon liquidation, dissolution or winding up of
the Company. The term "equity securities" does not include convertible
debt securities.
Dividends
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of assets of the Company legally available for payment, cash dividends
at such rates and on such dates as will be set forth in the applicable
Prospectus Supplement. Each such dividend shall be payable to holders of
record as they appear on the share transfer books of the Company on such
record dates as shall be fixed by the Board of Directors of the Company.
<PAGE>
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement.
Dividends, if cumulative, will be cumulative from and after the date set
forth in the applicable Prospectus Supplement. If the Board of Directors
of the Company fails to declare a dividend payable on a dividend payment
date on any series of the Preferred Stock for which dividends are non-
cumulative, then the holders of such series of the Preferred Stock will
have no right to receive a dividend in respect of the dividend period
ending on such dividend payment date, and the Company will have no
obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend
payment date.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the
Company of any other series ranking, as to dividends, on a parity with or
junior to the Preferred Stock of such series for any period unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof is set apart for such payment
on the Preferred Stock of such series for all past dividend periods and the
then current dividend period or (ii) if such series of Preferred Stock does
not have a cumulative dividend, full dividends for the then current
dividend period have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for such
payment on the Preferred Stock of such series. When dividends are not paid
in full (or a sum sufficient for such full payment is not so set apart)
upon Preferred Stock of any series and the shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Preferred
Stock of such series, all dividends declared upon Preferred Stock of such
series and any other series of Preferred Stock ranking on a parity as to
dividends with such Preferred Stock shall be declared pro rata so that the
amount of dividends declared per share of Preferred Stock of such series
and such other series of Preferred Stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Preferred
Stock of such series (which shall not include any accumulation in respect
of unpaid dividends for prior dividend periods if such Preferred Stock does
not have a cumulative dividend) and such other series of Preferred Stock
bear to each other. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on
Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i)
if such series of Preferred Stock has a cumulative dividend, full
cumulative dividends on the Preferred Stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof is set apart for payment for all past dividend
periods and the then current dividend period, and (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends on the
Preferred Stock of such series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof is set
apart for payment for the then current dividend period, no dividends (other
than in shares of Common Stock or other shares of capital stock ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment nor shall
any other distribution be declared or made upon the Common Stock, or any
other capital stock of the Company ranking junior to or on a parity with
<PAGE>
the Preferred Stock of such series as to dividends or upon liquidation, nor
shall any shares of Common Stock, or any other shares of capital stock of
the Company ranking junior to or on a parity with the Preferred Stock of
such series as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by the
Company (except by conversion into or exchange for other capital stock of
the Company ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation).
Any dividend payment made on shares of a series of Preferred Stock
shall first be credited against the earliest accrued but unpaid dividend
due with respect to shares of such series which remains payable.
Redemption
If so provided in the applicable Prospectus Supplement, the Preferred
Stock will be subject to mandatory redemption or redemption at the option
of the Company, as a whole or in part, in each case upon the terms, at the
times and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that
is subject to mandatory redemption will specify the number of shares of
such Preferred Stock that shall be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to
be specified, together with an amount equal to all accrued and unpaid
dividends thereon (which shall not, if such Preferred Stock does not have a
cumulative dividend, include any accumulation in respect of unpaid
dividends for prior dividend periods) to the date of redemption. The
redemption price may be payable in cash or other property, as specified in
the applicable Prospectus Supplement. If the redemption price for
Preferred Stock of any series is payable only from the net proceeds of the
issuance of shares of capital stock of the Company, the terms of such
Preferred Stock may provide that, if no such shares of capital stock shall
have been issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then due, such
Preferred Stock shall automatically and mandatorily be converted into the
applicable shares of capital stock of the Company pursuant to conversion
provisions specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if a series of Preferred
Stock has a cumulative dividend, full cumulative dividends on all shares of
such series of Preferred Stock shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if a series of Preferred Stock does not have a
cumulative dividend, full dividends on all shares of the Preferred Stock of
such series have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment
for the then current dividend period, no shares of such series of Preferred
Stock shall be redeemed unless all outstanding shares of Preferred Stock of
such series are simultaneously redeemed; provided, however, that the
foregoing shall not prevent the purchase or acquisition of Preferred Stock
of such series to preserve the REIT status of the Company or pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of Preferred Stock of such series. In addition, unless
(i) if such series of Preferred Stock has a cumulative dividend, full
<PAGE>
cumulative dividends on all outstanding shares of such series of Preferred
Stock have been or contemporaneously are declared and paid or declared and
a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, and (ii) if such
series of Preferred Stock does not have a cumulative dividend, full
dividends on the Preferred stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for the then current dividend
period, the Company shall not purchase or otherwise acquire directly or
indirectly any shares of Preferred Stock of such series (except by
conversion into or exchange for capital shares of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Preferred Stock of such series to
preserve the REIT status of the Company or pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares
of Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares
held or for which redemption is requested by such holder (with adjustments
to avoid redemption of fractional shares) or by any other equitable manner
determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of Preferred
Stock of any series to be redeemed at the address shown on the stock
transfer books of the Company. Each notice shall state: (i) the redemption
date; (ii) the number of shares and series of the Preferred Stock to be
redeemed; (iii) the redemption price; (iv) the place or places where
certificates for such Preferred Stock are to be surrendered for payment of
the redemption price; (v) that dividends on the shares to be redeemed will
cease to accrue on such redemption date; and (vi) the date upon which the
holder's conversion rights, if any, as to such shares shall terminate. If
fewer than all the shares of Preferred Stock of any series are to be
redeemed, the notice mailed to each such holder thereof shall also specify
the number of shares of Preferred Stock to be redeemed from each such
holder. If notice of redemption of any Preferred Stock has been given and
if the funds necessary for such redemption have been set aside by the
Company in trust for the benefit of the holders of any Preferred Stock so
called for redemption, then from and after the redemption date dividends
will cease to accrue on such Preferred Stock, and all rights of the holders
of such shares will terminate, except the right to receive the redemption
price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Company, then, before any distribution or payment
shall be made to the holders of any Common Stock or any other class or
series of capital stock of the Company ranking junior to the Preferred
Stock in the distribution of assets upon any liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock
shall be entitled to receive out of assets of the Company legally available
for distribution to stockholders liquidating distributions in the amount of
<PAGE>
the liquidation preference per share, if any, set forth in the applicable
Prospectus Supplement, plus an amount equal to all dividends accrued and
unpaid thereon (which shall not include any accumulation in respect of
unpaid noncumulative dividends for prior dividend periods). After payment
of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Stock will have no right or claim to any
of the remaining assets of the Company. In the event that, upon any such
voluntary or involuntary liquidation, dissolution or winding up, the
available assets of the Company are insufficient to pay the amount of the
liquidating distributions on all outstanding shares of Preferred Stock and
the corresponding amounts payable on all shares of other classes or series
of capital stock of the Company ranking on a parity with the Preferred
Stock in the distribution of assets, then the holders of the Preferred
Stock and all other such classes or series of capital stock shall share
ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all
holders of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of capital
stock ranking junior to the Preferred Stock upon liquidation, dissolution
or winding up, according to their respective rights and preferences and in
each case according to their respective number of shares. For such
purposes, the consolidation or merger of the Company with or into any other
corporation, trust or entity, or the sale, lease or conveyance of all or
substantially all of the property or business of the Company, shall not be
deemed to constitute a liquidation, dissolution or winding up of the
Company.
Voting Rights
Holders of the Preferred Stock will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Stock, so long
as any shares of Preferred Stock of a series remain outstanding, the
Company will not, without the affirmative vote or consent of the holders of
at least two-thirds of the shares of such series of Preferred Stock
outstanding at the time, given in person or by proxy, either in writing or
at a meeting (such series voting separately as a class), (i) authorize or
create, or increase the authorized or issued amount of, any class or series
of capital stock ranking prior to such series of Preferred Stock with
respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Company into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase
any such shares; or (ii) amend, alter or repeal the provisions of the
Company's Articles of Incorporation or the Designating Amendment for such
series of Preferred Stock, whether by merger, consolidation or otherwise
(an "Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of such series of Preferred Stock or
the holders thereof; provided, however, with respect to the occurrence of
any of the Events set forth in (ii) above, so long as the Preferred Stock
remains outstanding with the terms thereof materially unchanged, taking
into account that upon the occurrence of an Event the Company may not be
<PAGE>
the surviving entity, the occurrence of any such Event shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting power of holders of Preferred Stock, and provided further that (x)
any increase in the amount of the authorized Preferred Stock or the
creation or issuance of any other series of Preferred Stock, or (y) any
increase in the amount of authorized shares of such series or any other
series of Preferred Stock, in each case ranking on a parity with or junior
to the Preferred Stock of such series with respect to payment of dividends
or the distribution of assets upon liquidation, dissolution or winding up,
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of such series of
Preferred Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption.
Conversion Rights
The terms and conditions, if any, upon which any series of Preferred
Stock is convertible into Common Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number
of shares of Common Stock into which the shares of Preferred Stock are
convertible, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the
option of the holders of the Preferred Stock or the Company, the events
requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such series of Preferred
Stock.
Restrictions on Ownership
For the Company to qualify as a REIT under the Internal Revenue Code
of 1986, as amended (the "Code"), not more than 50% in value of its
outstanding capital stock may be owned, directly or indirectly, by five or
fewer individuals (as defined in the Code to include certain entities)
during the last half of a taxable year. To assist the Company in meeting
this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Company's outstanding equity securities, including any Preferred Stock of
the Company. Therefore, the Designating Amendment for each series of
Preferred Stock may contain provisions restricting the ownership and
transfer of the Preferred Stock. The applicable Prospectus Supplement will
specify any additional ownership limitation relating to a series of
Preferred Stock. See "Restrictions on Transfers of Capital Stock."
Transfer Agent
The transfer agent and registrar for the Preferred Stock will be set
forth in the applicable Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The description of the Company's Common Stock set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Articles of Incorporation and Bylaws.
<PAGE>
General
Under the Articles of Incorporation, the Company has authority to
issue 100 million shares of Common Stock, par value $.01 per share. Under
Maryland law, stockholders generally are not responsible for the
corporation's debts or obligations. At April 20, 1998, the Company had
outstanding 12,330,963 shares of Common Stock.
Terms
Subject to the preferential rights of any other shares or series of
stock, holders of shares of Common Stock will be entitled to receive
dividends on shares of Common Stock if, as and when authorized and declared
by the Board of Directors of the Company out of assets legally available
therefor and to share ratably in the assets of the Company legally
available for distribution to its stockholders in the event of its
liquidation, dissolution or winding-up after payment of, or adequate
provision for, all known debts and liabilities of the Company.
Each outstanding share of Common Stock entitles the holder to one vote
on all matters submitted to a vote of stockholders, including the election
of Directors and, except as otherwise required by law or except as provided
with respect to any other class or series of stock, the holders of Common
Stock will possess the exclusive voting power. There is no cumulative
voting in the election of Directors, which means that the holders of a
majority of the outstanding shares of Common Stock can elect all of the
Directors then standing for election, and the holders of the remaining
shares of Common Stock will not be able to elect any Directors.
Holders of Common Stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the
Company.
The Company intends to furnish its stockholders with annual reports
containing audited consolidated financial statements and an opinion thereon
expressed by an independent public accounting firm and quarterly reports
for the first three quarters of each fiscal year containing unaudited
financial information.
All shares of Common Stock will have equal dividend, distribution,
liquidation and other rights, and will have no preference, appraisal or
exchange rights.
Pursuant to the MGCL, a corporation generally cannot dissolve, amend
its Articles of Incorporation, merge, sell all or substantially all of its
assets, engage in a share exchange or engage in similar transactions
outside the ordinary course of business unless approved by the affirmative
vote of stockholders holding at least two-thirds of the shares entitled to
vote on the matter unless a lesser percentage (but not less than a majority
of all of the votes to be cast on the matter) is set forth in the
corporation's Articles of Incorporation. The Company's Articles of
Incorporation do not provide for a lesser percentage in such situations.
Restrictions on Ownership
For the Company to qualify as a REIT under the Code, not more than 50%
in value of its outstanding capital stock may be owned, directly or
<PAGE>
indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year. To assist the
Company in meeting this requirement, the Company may take certain actions
to limit the beneficial ownership, directly or indirectly, by a single
person of the Company's outstanding equity securities. See "Restrictions
on Transfers of Capital Stock."
Shareholder Rights Agreement
The Company has a shareholders' rights plan (the "Shareholder Rights
Agreement") which grants the holders of the Common Stock rights which
generally become exercisable if (i) a person becomes an "acquiring person"
by acquiring 10% or more of the Common Stock, or (ii) a person commences a
tender offer that would result in that person owning 10% or more of the
Common Stock. In the event a person becomes an "acquiring person," each
holder of a right (other than the acquiring person) would be entitled to
acquire such number of preferred shares of the Company which are equivalent
to the Common Stock having a value of twice the then-current exercise price
of the right. If the Company is acquired in a merger or other business
combination transaction after any such event, each holder of a right would
then be entitled to purchase, at the then-current exercise price, shares of
the acquiring company's common stock having a value of twice the exercise
price of the right. The Shareholder Rights Agreement may have the effect
of delaying or preventing a change in control of the Company.
Transfer Agent
The transfer agent and registrar for the Common Stock is American
Stock Transfer and Trust Company.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
For the Company to qualify as a REIT under the Code, among other
things, not more than 50% in value of its outstanding capital stock may be
owned, directly or indirectly, by five or fewer individuals (defined in the
Code to include certain entities) during the last half of a taxable year
(other than the first year) (the "Five or Fewer Test"), and such shares of
capital stock must be beneficially owned by 100 or more persons during at
least 335 days of a taxable year of 12 months (other than the first year)
or during a proportionate part of a shorter taxable year. The Articles of
Incorporation, subject to certain exceptions, provide that no holder may
own, or be deemed to own by virtue of the attribution provisions of the
Code, shares of the Company's capital stock in excess of the Ownership
Limit. Pursuant to the Code, generally, certain types of entities, such as
pension trusts qualifying under Section 401(a) of the Code, United States
investment companies registered under the Investment Company Act of 1940,
corporations, trusts and partnerships will be looked-through for purposes
of the Five or Fewer Test (i.e., the beneficial owners of such entities
will be counted as holders). The Company's Articles of Incorporation limit
such entities under the Look-Through Ownership Limit to holdings of no more
than 15% of the aggregate value of the Company's shares of capital stock.
Any transfer of shares of capital stock or any security convertible into
shares of capital stock that would create a direct or indirect ownership of
shares of capital stock in excess of the Ownership Limit or the Look-
Through Ownership Limit or that would result in the disqualification of the
Company as a REIT, including any transfer that results in the shares of
<PAGE>
capital stock being owned by fewer than 100 persons or results in the
Company being "closely held" within the meaning of Section 856(h) of the
Code shall be null and void, and the intended transferee will acquire no
rights to the shares of capital stock. The foregoing restrictions on
transferability and ownership will not apply if the Board of Directors
determines that it is no longer in the best interests of the Company to
attempt to qualify, or to continue to qualify, as a REIT. The Board of
Directors may, in its sole discretion, waive the Ownership Limit or the
Look-Through Ownership Limit if evidence satisfactory to the Board of
Directors and the Company's tax counsel is presented that the changes in
ownership will not then or in the future jeopardize the Company's REIT
status.
Capital stock owned, or deemed to be owned, or transferred to a
shareholder in excess of the Ownership Limit or the Look-Through Ownership
Limit or that causes the Company to be treated as "closely-held" under
Section 856(h) of the Code or is otherwise not permitted as provided above,
will be designated shares in trust ("Shares in Trust") that will be
transferred, by operation of law, to a person unaffiliated with the Company
designated by the Board of Directors as trustee (the "Trustee") of a trust
(the "Share Trust") for the benefit of one or more charitable
organizations. Shares in Trust will remain issued and outstanding Common
or Preferred Shares of the Company and will be entitled to the same rights
and privileges as all other shares of the same class or series. The
Trustee will receive all dividends and distributions on the Shares in Trust
for the Share Trust and will hold such dividends or distributions in trust
for the benefit of one or more designated charitable beneficiaries. The
Trustee will vote all Shares in Trust. Any vote cast by the proposed
transferee in respect of the Shares in Trust prior to the discovery by the
Company that such shares have been transferred to the Share Trust shall be
rescinded and shall be void ab initio. Any dividend or distribution paid
to a proposed transferee or owner of Shares in Trust prior to the discovery
by the Company that such shares have been transferred to the Share Trust
will be required to be repaid upon demand to the Trustee for the benefit of
one or more charitable beneficiaries. The Trustee may, at any time the
Shares in Trust are held in the Share Trust, transfer the interest in the
Share Trust representing the Shares in Trust to any person whose ownership
of the shares of capital stock designated as Shares in Trust would not
violate the Ownership Limit or the Look-Through Ownership Limit, or
otherwise result in the disqualification of the REIT, as described above,
and provided such permitted transferee purchases such shares for valuable
considerations. Upon such sale, the proposed original transferee will
receive the lesser of (i) the price paid by the original transferee
shareholder for the shares of capital stock that were transferred to the
Share Trust, or if the original transferee shareholder did not give value
for such shares (e.g., the capital stock was received through a gift,
devise or other transaction), the average closing price for the class of
shares from which such shares of Shares in Trust were designated for the
ten days immediately preceding such sale or gift and (ii) the price
received by the Trustee from such sale. Any amounts received by the
Trustee in excess of the amounts paid to the proposed transferee will be
distributed to one or more charitable beneficiaries of the Share Trust. If
the foregoing transfer restrictions are determined to be void or invalid by
virtue of any legal decision, statute, rule or regulation, then the
intended transferee of shares held in the Share Trust may be deemed, at the
option of the Company, to have acted as an agent on behalf of the Company
in acquiring the Shares in Trust and to hold the Shares in Trust on behalf
of the Company.
<PAGE>
In addition, the Company has the right, for a period of 90 days during
the time any shares of Shares in Trust are held by the Trustee, to purchase
all or any portion of the Shares in Trust from the Trust at the lesser of
(i) the price initially paid for such shares by the original transferee-
shareholder, or if the original transferee-shareholder did not give value
for such shares (e.g., the shares were received through a gift, device or
other transaction), the average closing price for the class of stock from
which such Shares in Trust were designated for the ten days immediately
preceding such sale or gift, and (ii) the average closing price for the
class of shares form which such Shares in Trust were designated for the ten
trading days immediately preceding the date the Company elects to purchase
such shares. The 90-day period begins on date of the violative transfer if
the original transferee-shareholder gives notice to the Company of the
transfer or, if no such notice is given, the date the Board of Directors
determines that a violative transfer has been made.
All certificates representing shares of stock of the Company bear a
legend referring to the restrictions described above.
Each shareholder shall upon demand be required to disclose to the
Company in writing any information with respect to the direct, indirect and
constructive ownership of capital stock as the Board of Directors deems
necessary to comply with the provisions of the Code applicable to REITs, to
comply with the requirements of any taxing authority or governmental agency
or to determine any such compliance.
<PAGE>
The Ownership Limit and the Look-Through Ownership Limit may have the
effect of precluding acquisition of control of the Company.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain material U.S. Federal income tax
considerations regarding the offering of Securities. The following
discussion is not exhaustive of all possible tax considerations and is not
tax advice. The Code provisions governing the Federal income tax treatment
of REITs are highly technical and complex, and this summary is qualified in
its entirety by the applicable Code provisions, rules and regulations
promulgated thereunder, and the administrative and judicial interpretations
thereof. The following discussion is based on current law. The tax
treatment of a holder of any of the Securities will vary depending upon the
terms of the specific Securities acquired by such holder as well as his
particular situation, and this discussion does not attempt to address any
aspects of Federal income taxation relating to the holders of Securities.
Certain Federal income tax considerations relevant to holders of Securities
will be provided in the applicable Prospectus Supplement relating thereto.
EACH PROSPECTIVE PURCHASER IS URGED TO CONSULT WITH HIS OR HER OWN TAX
ADVISOR WITH RESPECT TO SUCH PURCHASER'S SPECIFIC FEDERAL, STATE, LOCAL,
FOREIGN AND OTHER TAX CONSEQUENCES OF THE PURCHASE, HOLDING AND SALE OF
SECURITIES.
Taxation of the Company
The Company intends to operate so as to meet the requirements under the
Code for qualification as a REIT, commencing with its taxable year ending
December 31, 1995. No assurance can be given, however, that such
<PAGE>
requirements will be met. Based on various assumptions and factual
representations made by the Company, in the opinion of Phillips, Lytle,
Hitchcock, Blaine & Huber LLP, counsel to the Company, the Company has been
organized in conformity with the requirements for qualification as a REIT
beginning with its taxable year ending December 31, 1995, and its proposed
method of operation as described in this Prospectus and as represented by
the Company will enable it to satisfy the requirements for such
qualification. Such qualification depends upon the Company's ability to
meet the various requirements imposed under the Code through actual
operating results, as discussed below. Phillips, Lytle, Hitchcock, Blaine
& Huber LLP will not review these operating results, and no assurance can
be given that actual operating results will meet these requirements. The
opinion of Phillips, Lytle, Hitchcock, Blaine & Huber LLP is not binding on
the Internal Revenue Service (the "Service"). In addition, the opinion of
Phillips, Lytle, Hitchcock, Blaine & Huber LLP is also based upon existing
law, Treasury regulations, currently published administrative positions of
the Service and judicial decisions, which are subject to change either
prospectively or retroactively.
In any year in which the Company qualifies as a REIT, it generally
will not be subject to Federal corporate income taxes on that portion of
its ordinary income or capital gain that is currently distributed to
shareholders. The REIT provisions of the Code generally allow a REIT to
deduct distributions paid to its shareholders. This deduction for
distributions paid to shareholders substantially eliminates the Federal
"double taxation" on earnings (once at the corporate level and once again
at the shareholder level) that usually results from investments in a
corporation.
Even if the Company qualifies as a REIT, however, the Company will be
subject to Federal income tax, as set forth below. First, the Company will
be taxed at regular corporate rates on its undistributed REIT taxable
income, including undistributed net capital gains. Second, under certain
circumstances, the Company may be subject to the "alternative minimum tax"
as a consequence of its items of tax preference. Third, if the Company has
net income from the sale or other disposition of "foreclosure property"
that is held primarily for sale to customers in the ordinary course of
business or other non-qualifying income from foreclosure property, it will
be subject to tax at the highest corporate rate on such income. Fourth, if
the Company has net income from prohibited transactions (which are, in
general, certain sales or other disposition of property other than
foreclosure property held primarily for sale to customers in the ordinary
course of business), such income will be subject to a 100% tax. Fifth, if
the Company should fail to satisfy either the 75% or 95% gross income test
(discussed below) but has nonetheless maintained its qualification as a
REIT because certain other requirements have been met, it will be subject
to a 100% tax on the net income attributable to the greater of the amount
by which the Company fails the 75% or 95% test, multiplied by a fraction
intended to reflect the Company's profitability. Sixth, if the Company
fails to distribute during each year at least the sum of (i) 85% of its
REIT ordinary income for such year, (ii) 95% of its REIT capital gain net
income for such year and (iii) any undistributed taxable income from prior
periods, the Company will be subject to a 4% excise tax on the excess of
such required distribution over the amounts actually distributed. Seventh,
if the Company should dispose of any of the asset owned at the time of the
Initial Offering that had a fair market value at such time in excess of its
adjusted tax basis ("Built-In-Gain") or any asset acquired by the Company
<PAGE>
from a C corporation (i.e., a corporation generally subject to the full
corporate level tax) in a carryover basis transaction during the ten-year
period (the "Recognition Period") beginning on the date of the Initial
Offering with respect to assets owned by the Company at the time of the
Initial Offering, or the date on which the asset was acquired by the
Company from a C corporation, then, to the extent of the Built-In Gain,
such gain will be subject to a tax at the highest regular corporate rate,
pursuant to guidelines issued by the Service (the "Built-In Gain Rules").
Requirements for Qualification
To qualify as a REIT, the Company must elect to be so treated and must meet
the requirements, discussed below, relating to the Company's organization,
sources of income, nature of assets and distributions of income to
shareholders ("REIT Requirements").
Organizational Requirements
The Code defines a REIT as a corporation, trust or association: (i) that is
managed by one or more trustees or directors, (ii) the beneficial ownership
of which is evidenced by transferable shares or by transferable
certificates of beneficial interest, (iii) that would be taxable as a
domestic corporation but for the REIT Requirements, (iv) that is neither a
financial institution nor an insurance company subject to certain
provisions of the Code, (v) the beneficial ownership of which is held by
100 or more persons, and (vi) at all times during the last half of each
taxable year not more than 50% in value of the outstanding shares of which
is owned, directly or indirectly, through the application of certain
attribution rules, by five or fewer individuals (as defined in the Code to
include certain entities). In addition, certain other tests, described
below, regarding the nature of its income and assets also must be
satisfied. The Code provides that conditions (i) through (iv), inclusive,
must be met during the entire taxable year and that condition (v) must be
met during at least 335 days of a taxable year of twelve months, or during
a proportionate part of a taxable year of less than 12 months. Conditions
(v) and (vi) (the "100 shareholder" and "five or fewer" requirements) will
not apply until after the first taxable year for which an election is made
to be taxed as a REIT. For purposes of conditions (v) and (vi), pension
funds and certain other tax-exempt entities are treated as individuals,
subject to a "look-through" exception in the case of condition (vi).
Prior to consummation of the Initial Offering, the Company did not
satisfy conditions (v) and (vi) above. The Initial Offering and related
transactions allowed the Company to satisfy the 100 shareholder and five or
fewer requirements. In addition, the Company's Articles of Incorporation
currently include certain restrictions regarding transfer of its stock,
which restrictions are intended (among other things) to assist the Company
in continuing to satisfy conditions (v) and (vi) above.
In addition, a corporation may not elect to become a REIT unless its
taxable year is the calendar year. Effective January 1, 1995, the Company
changed its taxable year to the calendar year.
In order to provide the Company with flexibility, the Company owns the
Properties through the Operating Partnership. The Company holds a 94.81%
limited partnership interest in the Partnership. The Subsidiary, a wholly-
owned subsidiary of the Company, holds a 1.72% general partner interest in
<PAGE>
the Operating Partnership. The Operating Partnership and the Subsidiary
are qualified REIT subsidiaries. A qualified REIT subsidiary is any
corporation that is 100% owned by a REIT at all times during the period the
subsidiary is in existence. Under Section 856(i) of the Code, a qualified
REIT subsidiary is not treated as a separate corporation from the REIT, and
all assets, liabilities, income, deductions, and credits of the qualified
REIT subsidiary are treated as assets, liabilities and such items (as the
case may be) of the REIT. The Operating Partnership is currently
disregarded for Federal income tax purposes since the existence of the
Subsidiary is ignored for Federal income tax purposes and, as a result, the
Operating Partnership has only one partner for Federal income tax purposes.
The Operating Partnership is treated as a partnership for Federal
income tax purposes and the Company is treated as a partner in the
Operating Partnership. In the case of a REIT that is a partner in a
partnership, Treasury Regulations provide that the REIT is deemed to own
its proportionate share of the assets of the partnership and is deemed to
be entitled to the income of the partnership attributable to such share.
In addition, the character of the assets and gross income of the
partnership retain the same character in the hands of the REIT for purposes
of Section 856 of the Code, including satisfying the gross income tests and
asset tests. Thus, the Company's proportionate share of the assets,
liabilities and items of income of the Operating Partnership are treated as
assets, liabilities and items of income of the Company for purposes of
applying the requirements described herein.
Income Tests
To maintain qualification as a REIT, three gross income requirements
must be satisfied annually.
- - First, at least 75% of the Company's gross income, excluding gross
income from certain dispositions of property held primarily for sale
to customers in the ordinary course of a trade or business
("prohibited transactions"), for each taxable year must be derived
directly or indirectly from investments relating to real property or
mortgages on real property (including "rents form real property" and
in certain circumstances, interest) or from certain types of temporary
investments.
- - Second, at least 95% of the Company's gross income (excluding gross
income from prohibited transactions) for each taxable year must be
derived from such real property investments and from dividends,
interest and gain from the sale or disposition of stock or securities
or from any combination of the foregoing.
- - Third, less than 30% of the Company's gross income (including gross
income from prohibited transactions) for each taxable year is derived
from gain from the sale or other disposition of stock or securities
held for less than one year, gain from prohibited transactions and
gain from the sale or other disposition of real property held for less
than four years (apart from involuntary conversion and sales of
foreclosure property). For purposes of applying the 30% gross income
test, the holding period of the Properties acquired by the Company at
the time of the Initial Offering will be deemed to have commenced on
the date of acquisition.
<PAGE>
Rents received or deemed to be received by the Company will qualify as
"rents from real property in satisfying the gross income requirements for a
REIT described above only if several conditions are met.
- - First, the amount of rent generally must not be based in whole or in
part on the income or profits of any person.
- - Second, the Code provides that rents from a tenant will not qualify as
"rents from real property" in satisfying the gross income tests if the
REIT, or an owner of 10% or more of the REIT, directly or
constructively owns 10% or more of such tenant (a "Related Party
Tenant").
- - Third, if rent attributable to personal property, leased in connection
with a lease of real property, is greater than 15% of the total rent
received under the lease, then the portion of rent attributable to the
personal property will not qualify as "rents from real property."
- - Finally, for rents to qualify as "rents from real property" the REIT
must not operate or manage the property or furnish or render services
to tenants, other than through an "independent contractor" who is
adequately compensated and from whom the REIT does not derive any
income; provided, however, that a REIT may provide services with
respect to its properties and the income will qualify as "rents from
real property" if the services are "usually or customarily rendered"
in connection with the rental of a room or other space for occupancy
only and are not otherwise considered "rendered to the occupant."
The Company does not anticipate charging rent that is based in whole
or in part on the income or profits of any person. The Company will not
derive rent attributable to personal property leased in connection with
real property that exceeds 15% of the total rents. The Company does not
anticipate receiving rent from Related Party Tenants.
The Company provides certain services with respect to the Properties.
The Company believes that the services provided by it directly are usually
or customarily rendered in connection with the rental of space for
occupancy only and are not otherwise rendered to particular tenants and
therefore that the provision of such services will not cause rents received
with respect to the Properties to fail to qualify as rents from real
property. Services with respect to the Properties that may not be provided
by the Company directly will be performed by independent contractors.
If the Company fails to satisfy one or both of the 75% or 95% gross
income tests for any taxable year, it may nevertheless qualify as a REIT
for that year if it is eligible for relief under certain provisions of the
Code. These relief provisions will generally be available if (i) the
Company's failure to meet these tests was due to reasonable cause and not
due to willful neglect, (ii) the Company attaches a schedule of the sources
of its income to its Federal income tax return and (iii) any incorrect
information on the schedule is not due to fraud with intent to evade tax.
It is not possible, however, to state whether, in all circumstances, the
Company would be entitled to the benefit of these relief provisions. For
example, if the Company fails to satisfy the gross income tests because
non-qualifying income that the Company intentionally incurs exceeds the
limits on such income, the Service could conclude that the Company's
failure to satisfy the tests was not due to reasonable cause. As discussed
<PAGE>
above, even if these relief provisions apply, a 100% tax would be imposed
on the greater of the amount by which the Company fails either the 75% or
95% gross income test, multiplied by a fraction intended to reflect the
Company's profitability. No similar mitigation provision provides relief
if the Company fails the 30% income test, and in such case, the Company
will cease to qualify as a REIT.
Asset Tests
At the close of each quarter of its taxable year, the Company also must
satisfy three tests relating to the nature and diversification of its
assets.
- - First, at least 75% of the value of the Company's total assets must be
represented by real estate assets, cash, cash items and government
securities.
- - Second, no more than 25% of the value of the Company's total assets
may be represented by securities other than those in the 75% asset
class.
- - Third, of the investments included in the 25% asset class, the value
of any one issuer's securities owned by the Company may not exceed 5%
of the value of the Company's total assets, and the Company may not
own more than 10% of any one issuer's outstanding voting securities.
After initially meeting the asset tests at the close of any quarter,
the Company will not lose its status as a REIT for failure to satisfy the
asset tests at the end of a later quarter solely by reason of changes in
asset values. If the failure to satisfy the asset tests results from an
acquisition of securities or other property during a quarter, the failure
can be cured by disposition of sufficient non-qualifying assets within 30
days after the close of that quarter. The Company intends to maintain
adequate records of the value of its assets to ensure compliance with the
asset tests and to take such other actions within 30 days after the close
of any quarter as may be required to cure any noncompliance.
Annual Distribution Requirements
To qualify as a REIT, the Company is required to make distributions
(other than capital gain distributions) to its shareholders in an amount at
least equal to (a) the sum of (i) 95% of the Company's "REIT taxable
income" (computed without regard to the dividends-paid deduction and the
Company's capital gain) and (ii) 95% of the net income, if any, from
foreclosure property in excess of the special tax on income from
foreclosure property, minus (b) the sum of certain items of non-cash
income. Such distributions must be paid in the taxable year to which they
relate, or in the following taxable year if declared before the Company
timely files its Federal income tax return for such year and if paid on or
before the first regular distribution after such declaration. To the
extent that the Company does not distribute all of its net capital gain or
distributes less than 100% (but at least 95%) of its "REIT taxable income"
as adjusted, it will be subject to tax thereon at regular ordinary or
capital gains corporate tax rates, as the case may be. Further, if the
Company should fail to distribute during each calendar year at least the
sum of (a) 85% of its REIT ordinary income for that year, (b) 95% of its
REIT capital gain net income for that year and (c) any undistributed
<PAGE>
taxable income from prior periods, the Company would be subject to a 4%
excise tax on the excess of such required distribution over the amounts
actually distributed. In addition, during its Recognition Period, if the
Company disposes of any asset subject to the Built-In Gain Rules, the
Company will be required, pursuant to guidance issued by the Service, to
distribute at least 95% of the Built-In Gain (after tax), if any,
recognized on the disposition of the asset.
The Company intends to make timely distributions sufficient to satisfy
the annual distribution requirements.
It is expected that the Company's REIT taxable income will be less
than its cash flow due to the allowance of depreciation and other non-cash
charges in computing REIT taxable income. Accordingly, the Company
anticipates that it will generally have sufficient cash or liquid assets to
enable it to satisfy the 95% distribution requirement. It is possible,
however, that the Company, from time to time, may not have sufficient cash
or other liquid assets to meet the 95% distribution requirement or to
distribute such greater amount as may be necessary to avoid income and
excise taxation, due to timing differences between (i) the actual receipt
of income and actual payment of deductible expenses and (ii) the inclusion
of such income and deduction of such expenses in arriving at taxable income
of the Company, or if the amount of nondeductible expenses such as
principal amortization or capital expenditures exceed the amount of non-
cash deductions. In the event that such timing differences occur, the
Company may find it necessary to arrange for borrowings, if possible, in
order to meet the distribution requirement.
Under certain circumstances, the Company may be able to rectify a
failure to meet the distribution requirement for a year by paying
"deficiency dividends" to shareholders in a later year, which may be
included in the Company's deduction for dividends paid for the earlier
year. Thus, the Company may be able to avoid being taxed on amounts
distributed as deficiency dividends. The Company will, however, be
required to pay interest based upon the amount of any deduction taken for
deficiency dividends.
Earnings and Profits
In order to qualify as a REIT, the Company must either satisfy the REIT
requirements described in this Prospectus for all taxable years after 1986
or have, at the close of any taxable year, no earnings and profits
attributable to a non-REIT year. Pursuant to Treasury Regulations, in
order to qualify under either of these two provisions, the Company must not
have acquired the assets of a corporation in a nonrecognition transaction
after 1986 with accumulated earnings and profits attributable to a non-REIT
period unless, by the close of its first taxable year, such earnings are
distributed to the shareholders. Accordingly, any earnings and profits
that are carried over to the Company through the transactions resulting in
the formation of the Company (the "Formation Transactions") were required,
pursuant to Section 381 of the Code, to have been distributed to the
shareholders prior to the close of the Company's first taxable year. The
Company has represented that it had no non-REIT earnings and profits for
Federal income tax purposes as of the end of its first taxable year ended
December 31, 1995. In rendering its opinion regarding the eligibility of
the Company to qualify as a REIT, Phillips, Lytle, Hitchcock, Blaine &
Huber is relying on such representation. The Company believes that even if
<PAGE>
there were a subsequent determination that it received non-REIT earnings
and profits in the Formation Transactions, distributions to shareholders in
1995 in excess of current earnings and profits likely were sufficient to
distribute any such non-REIT earnings and profits. Moreover, although not
free from doubt, pursuant to Treasury Regulations, the Company may be able
to use certain "deficiency dividend" procedures to distribute any non-REIT
earnings and profits determined to exist that were not distributed by the
close of the 1995 taxable year. There can be no assurance, however, that
1995 distributions were sufficient to distribute any non-REIT earnings and
profits determined to exist or that such deficiency dividend procedures
would be available. In the event that 1995 distributions were insufficient
to distribute any such non-REIT earnings and profits, and the Company were
unable to utilize the deficiency dividend procedures in the Treasury
Regulations, the Company would fail to qualify as a REIT.
Failure to Qualify
If the Company fails to qualify as a REIT in any taxable year and the
relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to shareholders in any year in
which the Company fails to qualify will not be deductible by the Company
nor will they be required to be made. In such event, to the extent of
current and accumulated earnings and profits, all distributions to
shareholders will be dividends, taxable as ordinary income, and subject to
certain limitations of the Code, corporate distributees may be eligible for
the dividends-received deduction. Unless the Company is entitled to relief
under specific statutory provisions, the Company also will be ineligible
for qualification as a REIT for the four taxable years following the year
during which qualification was lost. It is not possible to state whether
in all circumstances the Company would be entitled to such statutory
relief. For example, if the Company fails to satisfy the gross income
tests because non-qualifying income that the Company intentionally incurs
exceeds the limit on such income, the Service could conclude that the
Company's failure to satisfy the tests was not due to reasonable cause.
Built-In Gain
To the extent the Company held any asset that has Built-In Gain as of the
first day of the first taxable year for which the Company qualifies as a
REIT, the Company may recognize a corporate level tax at the time it
disposes of such asset. Pursuant to Section 337(d)(1) of the Code,
Congress has authorized the Service to issue regulations to ensure that the
repeal of the General Utilities doctrine is not circumvented through the
use of investment vehicles like a REIT. In Notice 88-19, 1988-1 C.B. 486,
the Service announced that it intends to promulgate regulations requiring a
C corporation to recognize any net Built-In Gain that would have been
realized if the corporation had liquidated at the end of the last taxable
year before the taxable year in which it qualifies to be taxed as a REIT.
However, in lieu of this immediate recognition rule, the regulations will
permit a REIT to elect to be subject to rule similar to rules applicable to
S corporations with built-in gains under Section 1374 of the Code. Section
1374 of the Code generally provides that a corporation with appreciated
assets that elects S corporation status will recognize a corporate level
tax on the built-in gain if the S corporation disposes of the appreciated
assets within a ten-year period commencing on the date on which the S
corporation election was made. The Company has represented that it will
elect to have rules similar to the rules of Section 1374 of the Code apply
<PAGE>
to it. Accordingly, if the Company disposes of appreciated assets in a
taxable transaction within a ten-year period commencing on the date the
Company first qualifies as a REIT, the Company will be taxed at the
corporate level on the Built-in Gain attributable to the disposed assets.
For these purposes, the assets owned by the Company prior to the Formation
Transactions will be appreciated assets. If these assets are disposed of
within the ten-year recognition period, the Company will recognize a
corporate level tax on the Built-In Gain attributable to the disposed
assets. Accordingly, the disposition of assets acquired in the Formation
Transactions will adversely affect a shareholder's investment in the
Company. However, the Company may dispose of Property that is subject to
the tax on Built-in Gain in a tax-free exchange of like-kind property
pursuant to Section 1031 of the Code which will not trigger Built-In Gain.
Moreover, the Company does not anticipate disposing of a substantial
portion of its Built-In Gain assets, other than in a tax-free exchange,
within the ten-year recognition period. The Company estimates that the
amount of Built-In Gain with respect to the Properties is approximately
$5,000,000 and the amount of the corporate level tax if such Built-In Gain
was recognized would be approximately $1,750,000 at current tax rates. The
amount of such Built-In Gain is based upon the Company's determination of
fair value as of the first day of the first taxable year for which the
Company qualified as a REIT which valuation could be challenged by the
Service.
PLAN OF DISTRIBUTION
The Company may sell Preferred Stock and Common Stock and the
Operating Partnership may sell Debt Securities to or through one or more
underwriters or dealers for public offering and sale by or through them,
directly to one or more individual, institutional or other purchasers,
through agents or through a combination of any such methods of sale.
Direct sales to investors may also be accomplished through subscription
rights distributed to the Company's shareholders on a pr rata basis, which
may or may not be transferred. In connection with any distribution of
subscription rights to shareholders, if all of the underlying Securities
are not subscribed for, the Company may sell the unsubscribed Securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to sell
the unsubscribed Securities to third parties.
The distribution of the Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market price, or at negotiated prices (any of which may
represent a discount from the prevailing market prices).
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or the Operating Partnership or from
purchasers of Securities, for whom they may act as agents, in the form of
discounts, concessions or commissions. Underwriters may sell Securities to
and through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Underwriters, dealers, and agents that participate in the distribution of
Securities may be deemed to be underwriters under the Securities Act, and
any discounts or commissions they receive from the Company or the Operating
<PAGE>
Partnership and any profit on the resale of Securities they realize may be
deemed to be underwriting discounts and commissions under the Securities
Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company or the Operating Partnership will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading
market, other than the Common Shares which are listed on the NYSE. Any
Common Shares sold pursuant to a Prospectus Supplement will be listed on
the NYSE, subject to official notice of issuance. The Operating
Partnership or the Company may elect to list any series of Debt Securities
or Preferred Stock, respectively, on an exchange, but are not obligated to
do so. It is possible that one or more underwriters may make a market in a
series of Securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. Therefore, no
assurance can be given as to the liquidity of, or the trading market for,
any series of Debt Securities, or Preferred Stock.
Until the distribution of the Securities is completed, rules of the
Commission may limit the ability of any underwriters and selling group
members to bid for and purchase the Securities. As an exception to these
rules, underwriters are permitted to engage in certain transactions that
stabilize the price of the Securities. Such transactions consist of bids
or purchases for the purpose of pegging, fixing or maintaining the price of
the Securities.
If the underwriters create a short position in the Securities in
connection with an offering, i.e., if they sell more Securities than are
set forth on the cover page of the applicable Prospectus Supplement, the
underwriters may reduce that short position by purchasing Securities in the
open market.
The lead underwriters may also impose a penalty bid on certain other
underwriters and selling group members participating in an offering. This
means that if the lead underwriters purchase Securities in the open market
to reduce the underwriters' short position or to stabilize the price of the
Securities, they may reclaim the amount of any selling concession from the
underwriters and selling group members who sold those Securities as part of
the offering.
In general, purchases of a security for the purpose of stabilization
or to reduce a short position could cause the price of the security to be
higher than it might be in the absence of such purchases. The imposition
of a penalty bid might also have an effect on the price of a security to
the extent that it were to discourage resales of the security before the
distribution is completed.
Neither the Company nor the Operating Partnership makes any
representation or prediction as to the direction or magnitude of any effect
that the transactions described above might have on the price of the
Securities. In addition, neither the Company nor the Operating Partnership
makes any representation that underwriters will engage in such transaction
or that such transactions, once commenced, will not be discontinued without
notice.
<PAGE>
Under agreements into which the Company or the Operating Partnership
may enter, underwriters, dealers and agents who participate in the
distribution of Securities may be entitled to indemnification by the
Company or the Operating Partnership against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be tenants of, the Company or the Operating
Partnership in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agents
to solicit offers by certain institutions to purchase Securities from the
Company at the public offering price set forth in such Prospectus
Supplement pursuant to delayed delivery contracts ("Company Contracts")
providing the payment and delivery on the date or dates stated in such
Prospectus Supplement. Institutions with which such contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contracts will be subject to the condition that the purchase of the
Securities shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which such purchaser is subject. The underwriters
and such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
If so indicated in the applicable Prospectus Supplement, the Operating
Partnership will authorize underwriters or other persons acting as the
Operating Partnership's agents to solicit offers by certain institutions to
purchase Debt Securities from the Operating Partnership at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts ("Operating Partnership Contracts") providing for
payment and delivery on the date or dates stated in such Prospectus
Supplement. Each Operating Partnership Contract will be for an amount no
less than, and the aggregate principal amounts of Debt Securities sold
pursuant to Operating Partnership Contracts shall be not less nor more
than, the respective amounts stated in the applicable Prospectus
Supplement. Institutions with which such contracts, when authorized, may
be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and
others, but will in all cases be subject to the approval of the Operating
Partnership. The obligations of any purchaser under any such contract will
be subject to the conditions that (i) the purchase of the Debt Securities
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such purchaser is subject, and
(ii) if the Debt Securities are being sold to underwriters, the Operating
Partnership shall have sold to such underwriters the total principal amount
of the Debt Securities less the principal amount thereof covered by the
Operating Partnership Contracts. The underwriters and such other agents
will not have any responsibility in respect of the validity or performance
of such contracts.
In order to comply with the securities laws of certain states, if
applicable, the Securities offered hereby will be sold in such
jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain states Securities may not be sold unless they have
<PAGE>
been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available
and is complied with.
LEGAL MATTERS
Phillips, Lytle, Hitchcock, Blaine & Huber LLP Buffalo, New York, will
pass upon certain legal matters for the Company. Phillips, Lytle,
Hitchcock, Blaine & Huber has in the past represented and is presently
representing the Company in certain other matters. Robert J. Attea,
Chairman of the Board and Chief Executive Officer of the Company, is the
brother of a partner of Phillips, Lytle, Hitchcock, Blaine & Huber LLP.
Several partners of Phillips, Lytle, Hitchcock, Blaine & Huber LLP own
shares of Common Stock.
EXPERTS
The financial statements and schedules thereto incorporated by
reference in this Prospectus or elsewhere in the Registration Statement, to
the extent and for the periods indicated in their reports, have been
audited by Ernst & Young LLP, auditors, and are incorporated herein in
reliance upon such reports given upon the authority of such firm as experts
in accounting and auditing.
No person has been authorized in connection with the offering made
hereby to give any information or to make any representation not contained
in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Company, the Operating Partnership or any other person. This Prospectus
does not constitute an offer to sell or a solicitation of an offer to buy
any of the Securities offered hereby to any person or by anyone in any
jurisdiction in which it is unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that the information
contained herein is correct as of any date subsequent to the date hereof.
<PAGE>
TABLE OF CONTENTS
Page
Available Information
Incorporation of Certain Documents by Reference
Risk Factors
The Company
Use of Proceeds
Ratios of Earnings to Fixed Charges
Description of Debt Securities
Description of Preferred Stock
Description of Common Stock
Restrictions on Transfers of Capital Stock
Certain Federal Income Tax Considerations
Plan of Distribution
Legal Matters
Experts
<PAGE>
===========================================================================
$100,000,000
SOVRAN SELF STORAGE, INC.
Preferred Stock
Common Stock
$150,000,000
SOVRAN ACQUISITION
LIMITED PARTNERSHIP
Debt Securities
__________
PROSPECTUS
________________
, 1998
===========================================================================
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered will be borne by the Company and Operating
Partnership and are set forth in the following table (all amounts except
the registration fee and NASD fee are estimated):
Registration fee. . . . . . . . . . . . . . . . . . . . . . . . . .$ 73,750
NASD fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 25,500
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . .$ 50,000
Blue Sky expenses . . . . . . . . . . . . . . . . . . . . . . . . .$ 5,000
Accounting fees and expenses. . . . . . . . . . . . . . . . . . . .$ 10,000
Printing fees and expenses. . . . . . . . . . . . . . . . . . . . .$100,000
Trust Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 10,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$279,000
Item 15. Indemnification of Directors and Officers.
The Company's officers and Directors are and will be indemnified under
the Articles of Incorporation and Bylaws of the Company against certain
liabilities. The Articles of Incorporation requires the Company to
indemnify its Directors and officers, among others, against claims and
liabilities and reasonable expenses actually incurred by them in connection
with any claim or liability by reason of their services in those or other
capacities unless it is established that the act or omission of the
Director or officer was material to the matter giving rise to the
proceeding and was committed in bad faith or was the result of active and
deliberate dishonestly or the Director or officer actually received an
improper personal benefit or, in the case of any criminal proceeding, the
Director or officer has reasonable cause to believe that the act or
omission was unlawful. The By-laws of Sovran Holdings, Inc. ("Holdings"),
a Delaware corporation and wholly-owned subsidiary of the Company and sole
general partner of the Operating Partnership, contain similar provisions
that are consistent with Delaware law.
The Company has entered into indemnification agreements with each of
its senior executive officers and Directors. The indemnification
agreements require, among other matters, that the Company indemnify such
officers and Directors to the fullest extent permitted by law and advance
to such officers and Directors all related expenses, subject to
reimbursement if it is subsequently determined that indemnification is not
permitted. Under these agreements, the Company must also indemnify and
advance all expenses incurred by officers and Directors seeking to enforce
their rights under the indemnification agreements and may cover officers
and Directors under the Company's directors' and officers' liability
insurance. Although the form of indemnification agreement offers
substantially the same scope of coverage afforded by law, it provides
additional assurance to Directors and officers that indemnifications will
be available because, as a contract, it cannot be modified unilaterally in
the future by the Board of Directors or the stockholders to eliminate the
rights it provides.
It is the position of the Commission that indemnification of directors
and officers for liabilities under the Securities Act is against public
policy and unenforceable pursuant to Section 14 of the Securities Act.
<PAGE>
As permitted by Maryland Law, the Articles of Incorporation provides
that a Director or officer of the Company shall not be liable for money
damages to the Company or its shareholders for any act or omission in the
performance of his duties, except to the extent that (1) the person
actually received an improper benefit or (2) the person's action or failure
to act was the result of active and deliberate dishonesty and was material
to the cause of action adjudicated. The Certificate of Incorporation of
Holdings contains similar provisions that are consistent with Delaware law.
Item 16. Exhibits.
Exhibit No. Description
3.1 Amended and Restated Articles of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.1 of the Registration
Statement on Form S-11 of the Company, Registration
No. 33-91422.)
3.2 Amended and Restated Bylaws of the Company. (Incorporated by
reference to Exhibit 3.2 of the Registration Statement on
Form S-11 of the Company, Registration No. 33-91422.)
3.3 Agreement of Limited Partnership, as amended, of the Operating
Partnership. (Incorporated by reference to Exhibit 3.1 of the
General Form for Registration of Securities of the Operating
Partnership on Form 10.)
4.1 Indenture for Senior Debt Securities
4.2 Form of Senior Debt Security. (Included in Exhibit No. 4.1).
4.3 Indenture for Subordinated Debt Securities
4.4 Form of Subordinated Debt Security. (Included in Exhibit
No. 4.3)
5.1 Opinion of Phillips, Lytle, Hitchcock, Blaine & Huber LLP as to
the legality of the Securities being registered.
8.1 Opinion of Phillips, Lytle, Hitchcock, Blaine & Huber LLP as to
certain tax matters.
12.1 Calculation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP, Independent Accountants.
23.2 Consent of Phillips, Lytle, Hitchcock, Blaine & Huber LLP.
(Included in Exhibits 5.1 and 8.1 hereto.)
24.1 Powers of Attorney. (Included in Signature Page.)
25.1 Statement of Eligibility and Qualification of Trustee
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
<PAGE>
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the undersigned registrant pursuant to
Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act") that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes
of determining any liability under the Securities Act, each filing of the
respective registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions described under
Item 15 above, or otherwise, the registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrants of expenses incurred
or paid by a director, officer, or controlling person of the registrants in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
<PAGE>
(d) The undersigned registrant Sovran Acquisition Limited Partnership
hereby undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
(e) The undersigned registrants hereby undertake to supplement the
prospectus, after the expiration of the subscription period, to set forth
the results of the subscription offer, the transactions by the underwriters
during the subscription period, the amount of unsubscribed securities to be
purchased by the underwriters, and the terms of any subsequent reoffering
thereof. If any public offering by the underwriters is to be made on terms
differing from those set forth on the cover page of the prospectus, a post-
effective amendment will be filed to set forth the terms of such offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Sovran
Self Storage, Inc. and Sovran Acquisition Limited Partnership each
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Buffalo, New York on the 28th day
of April, 1998.
SOVRAN SELF STORAGE, INC.
By: /s/ Kenneth F. Myszka
Kenneth F. Myszka, President
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: SOVRAN HOLDINGS, INC., as General Partner
By: /s/ Kenneth F. Myszka
Kenneth F. Myszka, President
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors, of Sovran Self Storage, Inc. (the "Company") and Sovran
Holdings, Inc. ("Holdings"), in its capacity as general partner of Sovran
Acquisition Limited Partnership, hereby severally constitute Kenneth F.
Myszka and David L. Rogers, and each of them singly, are true and lawful
attorneys with full power to them, and each of them singly, to sign for us
and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all amendments to said Registration
Statement, and generally to do all such things in our names and in our
capacities as officers and directors to enable Sovran Self Storage, Inc.
and Sovran Acquisition Limited Partnership to comply with the provisions of
the Securities Act of 1933 and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
/s/Robert J. Attea Chairman of the April 28, 1998
Robert J. Attea Board of Directors
and, Chief Executive
Officer of the Company;
Chairman of the Board
of Directors and
Chief Executive Officer
of Holdings
<PAGE>
/s/Kenneth F. Myszka President, Chief April 28, 1998
Kenneth F. Myszka Operating Officer and
Director (Principal
Executive Officer) of
the Company; President,
Chief Operating
Officer and Director
("Principal Executive
Officer) of Holdings
/s/David L. Rogers Chief Financial Officer April 28, 1998
David L. Rogers of the Company (Principal
Financial and Accounting
Officer); Chief Financial
Officer of Holdings
(Principal Financial and
Accounting Officer)
/s/John Burns Director of the Company; April 28, 1998
John Burns Director of Holdings
/s/Michael A. Elia Director of the Company; April 28, 1998
Michael A. Elia Director of Holdings
/s/Anthony P. Gammie Director of the Company; April 28, 1998
Anthony P. Gammie Director of Holdings
/s/Charles E. Lannon Director of the Company; April 28, 1998
Charles E. Lannon Director of Holdings
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
3.1 Amended and Restated Articles of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.1 of the Registration
Statement on Form S-11 of the Company, Registration
No. 33-91422.)
3.2 Amended and Restated Bylaws of the Company. (Incorporated by
reference to Exhibit 3.2 of the Registration Statement on
Form S-11 of the Company, Registration No. 33-91422.)
3.3 Agreement of Limited Partnership, as amended, of the Operating
Partnership. (Incorporated by reference to Exhibit 3.1 of the
General Form for Registration of Securities of the Operating
Partnership on Form 10.)
4.1 Indenture for Senior Debt Securities
4.2 Form of Senior Debt Security. (Included in Exhibit No. 4.1).
4.3 Indenture for Subordinated Debt Securities
4.4 Form of Subordinated Debt Security. (Included in Exhibit
No. 4.3)
5.1 Opinion of Phillips, Lytle, Hitchcock, Blaine & Huber LLP as to
the legality of the Securities being registered.
8.1 Opinion of Phillips, Lytle, Hitchcock, Blaine & Huber LLP as to
certain tax matters.
12.1 Calculation of Ratios of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP, Independent Accountants.
23.2 Consent of Phillips, Lytle, Hitchcock, Blaine & Huber LLP.
(Included in Exhibits 5.1 and 8.1 hereto.)
24.1 Powers of Attorney. (Included in Signature Page.)
25.1 Statement of Eligibility and Qualification of Trustee
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------
SOVRAN ACQUISITION LIMITED PARTNERSHIP
TO
[___________________]
Trustee
____________________
Indenture
Dated as of [______________,] 1998
____________________
Senior Debt Securities
- ---------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY.......................................... 1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION........................................ 1
SECTION 101. Definitions...................................... 1
SECTION 102. Compliance Certificates and Opinions.............12
SECTION 103. Form of Documents Delivered to Trustee...........12
SECTION 104. Acts of Holders..................................13
SECTION 105. Notices, etc., to Trustee and Company............15
SECTION 106. Notice to Holders: Waiver........................15
SECTION 107. Counterparts; Effect of Headings and Table of
Contents.........................................16
SECTION 108. Successors and Assigns...........................16
SECTION 109. Severability Clause..............................17
SECTION 110. Benefits of Indenture............................17
SECTION 111. Governing Law....................................17
SECTION 112. Legal Holidays...................................17
SECTION 113. Immunity of Stockholders, Directors, Officers
and Agents of the Company........................17
SECTION 114. Conflict with Trust Indenture Act................18
ARTICLE TWO - SECURITIES FORMS...................................18
SECTION 201. Forms of Securities..............................18
SECTION 202. Form of Trustee's Certificate of Authentication..18
SECTION 203. Securities Issuable in Global Form...............19
ARTICLE THREE - THE SECURITIES...................................20
SECTION 301. Amount Unlimited; Issuable in Series.............20
SECTION 302. Denominations....................................23
SECTION 303. Execution, Authentication, Delivery and
Dating...........................................24
SECTION 304. Temporary Securities.............................26
SECTION 305. Registration, Registration of Transfer and
Exchange.........................................29
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.......................................32
SECTION 307. Payment of Interest; Interest Rights Preserved...33
SECTION 308. Persons Deemed Owners............................36
SECTION 309. Cancellation.....................................36
SECTION 310. Computation of Interest..........................37
ARTICLE FOUR - SATISFACTION AND DISCHARGE........................37
SECTION 401. Satisfaction and Discharge of Indenture..........37
SECTION 402. Application of Trust Funds.......................38
ARTICLE FIVE - REMEDIES..........................................39
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
<PAGE>
Page
SECTION 504. Trustee May File Proofs of Claim.................42
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.........................43
SECTION 506. Application of Money Collected...................44
SECTION 507. Limitation on Suits..............................44
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if
any, and Interest................................45
SECTION 509. Restoration of Rights and Remedies...............45
SECTION 510. Rights and Remedies Cumulative...................45
SECTION 511. Delay or Omission Not Waiver.....................45
SECTION 512. Control by Holders of Securities.................46
SECTION 513. Waiver of Past Defaults..........................46
SECTION 514. Waiver of Usury, Stay or Extension Laws..........46
SECTION 515. Undertaking for Costs............................47
ARTICLE SIX - THE TRUSTEE........................................47
SECTION 601. Notice of Defaults...............................47
SECTION 602. Certain Rights of Trustee........................47
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.......................................49
SECTION 604. May Hold Securities..............................49
SECTION 605. Money Held in Trust..............................49
SECTION 606. Compensation and Reimbursement...................50
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests............................50
SECTION 608. Resignation and Removal; Appointment of
Successor........................................51
SECTION 609. Acceptance of Appointment by Successor...........52
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business......................................53
SECTION 611. Appointment of Authenticating Agent..............54
SECTION 612. Certain Duties and Responsibilities of the
Trustee..........................................55
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY..........................................57
SECTION 701. Disclosure of Names and Addresses of Holders.....57
SECTION 702. Reports by Trustee...............................57
SECTION 703. Reports by Company...............................57
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders.......................................58
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE.......................................58
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions....................58
SECTION 802. Rights and Duties of Successor Corporation.......59
SECTION 803. Officers' Certificate and Opinion of Counsel.....59
ARTICLE NINE - SUPPLEMENTAL INDENTURES...........................59
SECTION 901. Supplemental Indentures Without Consent of
Holders..........................................59
<PAGE>
Page
SECTION 902. Supplemental Indentures with Consent of
Holders..........................................61
SECTION 903. Execution of Supplemental Indentures.............62
SECTION 904. Effect of Supplemental Indentures................62
SECTION 905. Conformity with Trust Indenture Act..............62
SECTION 906. Reference in Securities to Supplemental
Indentures.......................................62
ARTICLE TEN - COVENANTS..........................................63
SECTION 1001. Payment of Principal, Premium or Make-Whole
amount, if any; and Interest.....................63
SECTION 1002. Maintenance of Office or Agency..................63
SECTION 1003. Money for Securities Payments to Be Held in
Trust............................................65
SECTION 1004. Existence........................................66
SECTION 1005. Maintenance of Properties........................66
SECTION 1006. Insurance........................................67
SECTION 1007. Payment of Taxes and Other Claims................67
SECTION 1008. Statement as to Compliance.......................67
SECTION 1009. Waiver of Certain Covenants......................67
ARTICLE ELEVEN - REDEMPTION OF SECURITIES........................67
SECTION 1101. Applicability of Article.........................67
SECTION 1102. Election to Redeem; Notice to Trustee............68
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.........................................68
SECTION 1104. Notice of Redemption.............................68
SECTION 1105. Deposit of Redemption Price......................70
SECTION 1106. Securities Payable on Redemption Date............70
SECTION 1107. Securities Redeemed in Part......................71
ARTICLE TWELVE - SINKING FUNDS...................................71
SECTION 1201. Applicability of Article.........................71
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.......................................72
SECTION 1203. Redemption of Securities for Sinking Fund........72
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS............72
SECTION 1301. Applicability of Article.........................72
SECTION 1302. Repayment of Securities..........................73
SECTION 1303. Exercise of Option...............................73
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable...........................74
SECTION 1305. Securities Repaid in Part........................75
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE............75
SECTION 1401. Applicability of Article: Company's Option
to Effect Defeasance or Covenant Defeasance......75
SECTION 1402. Defeasance and Discharge.........................75
SECTION 1403. Covenant Defeasance..............................76
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..76
SECTION 1405. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions.......................................78
<PAGE>
Page
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES..............79
SECTION 1501. Purposes for Which Meetings May Be Called........79
SECTION 1502. Call, Notice and Place of Meetings...............79
SECTION 1503. Persons Entitled to Vote at Meetings.............80
SECTION 1504. Quorum; Action...................................80
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings..........................81
SECTION 1506. Counting Votes and Recording Action of Meetings..82
SIGNATURES AND SEALS.............................................83
ACKNOWLEDGMENT...................................................84
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY...........A-1
EXHIBIT B
FORMS OF CERTIFICATION.........................................B-1
<PAGE>
SOVRAN ACQUISITION LIMITED PARTNERSHIP
Reconciliation and tie between Trust Indenture Act of 1939 (the
"Trust Indenture Act" or "TIA") and Indenture, dated as of
[________________,] 1998.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
(S) 310(a)(1)...................... 607
(a)(2)...................... 607
(b)...................... 607, 608
(S) 312(c)...................... 701
(S) 313(a)...................... 702
(c)...................... 702
(S) 314(a)...................... 703
(a)(4)...................... 1009
(c)(1)...................... 102
(c)(2)...................... 102
(e)...................... 102
(S) 315(b)...................... 601
(S) 316(a) (last sentence)...... 101 ("Outstanding")
(a)(1)(A)...................... 502, 512
(a)(1)(B)...................... 513
(b)...................... 508
(S) 317(a)(1)...................... 503
(a)(2)...................... 504
(S) 318(a)...................... 111
(c)...................... 111
_______________
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 TIA Section 318(c), which
provides that the provisions of TIA 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.
<PAGE>
INDENTURE, dated as of [_________________,] 1996, between SOVRAN
ACQUISITION LIMITED PARTNERSHIP, a limited partnership organized under the
laws of the State of Delaware (hereinafter called the "Company"), having
its principal office at 5166 Main Street, Williamsville, New York 14221,
and [___________________], a banking association organized under the laws
of the _____________________________ as Trustee hereunder (hereinafter
called the "Trustee"), having a Corporate Trust Office at
_________________________].
RECITALS OF THE COMPANY
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 senior indebtedness, and has
duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of the Securities, to be issued in one or
more Series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act" or "TIA"), that are deemed
to be incorporated into this Indenture and shall, to the extent applicable,
be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities,
as follows:
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof "and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
<PAGE>
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 hereof to act on behalf of the Trustee to
authenticate Securities.
"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 any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company's
General Partner any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company's General Partner 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 respect to any
Securities issued pursuant to Section 301, any day, other than a Saturday
or Sunday, that is not a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law,
regulation or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights to purchase, warrants, options or other equivalents
(however designated) of corporate stock or other equity of such 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 Securities Exchange Act of
1934, 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.
<PAGE>
"Common Stock" means, with respect to any Person, all shares of
capital stock issued by such Person other than Preferred Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor entity shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the General Partner's
Chairman of the Board, the President or a Vice President, and by its
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the General Partner, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having 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. "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third business day preceding such a redemption date, as set
forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
business day, the average of all Reference Treasury Dealer Quotations for
such redemption date.
"Consolidated Net Assets" means as of any particular time the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom all current liabilities except
for (a) notes and loans payable, (b) current maturities of long-term debt
and (c) current maturities of obligations under capital leases, all as set
forth on the most recent consolidated balance sheet of the Company and its
consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles and practices as in effect on
[_____________] [the date of the Senior Indenture].
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency
and for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities
or (iii) any currency unit (or composite currency) other than the ECU for
the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
[______________________________].
<PAGE>
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"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, except as otherwise provided herein, generally accepted
accounting principles, as in effect from time to time, as used in the
United States applied on a consistent basis.
"General Partner" means Sovran Holdings, Inc., a Delaware corporation
and general partner of the Company, or any successor general partner.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to and registered in the name of the depository
for such series, or its nominee, in accordance with Section 305, and
bearing the legend prescribed in Section 203.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign Currency in which the Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the Foreign Currency in which the Securities of
such series are payable, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America or
such other government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
<PAGE>
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.
"Guaranty" by any Person means any Obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including, without limitation, every Obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring the
holder of such Indebtedness of the payment of such Indebtedness or (iii) to
maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that a Guaranty by any
Person shall not include endorsements by such Person for collection or
deposit, in either case in the ordinary course of business. The terms
"Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without duplication,
(i) any Obligation of such Person relating to any indebtedness of such
Person (A) for borrowed money (whether or not the recourse of the lender is
to the whole of the assets, of such person or only to a portion thereof),
(B) evidenced by notes, debentures or similar instruments (including
purchase money obligations) given in connection with the acquisition of any
property or assets (other than trade accounts payable for inventory or
similar property acquired in the ordinary course of business), including
securities, for the payment of which such Person is liable, directly or
indirectly, or the payment of which is secured by a lien, charge or
encumbrance on property or assets of such Person, (C) for goods, materials
or services purchased in the ordinary course of business (other than trade
accounts payable arising in the ordinary course of business), (D) with
respect to letters of credit or bankers acceptances issued for the account
of such Person or performance, surety or similar bonds, (E) for the payment
of money relating to a Capitalized Lease Obligation or (F) under interest
rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the
kind described in the preceding clause (i), which such Person has
Guaranteed or which is otherwise its legal liability; and (iii) any and all
deferrals, renewals, extensions and refunding of, or amendments,
modifications or supplements to, any liability of the kind described in any
of the preceding clauses (i) or (ii).
"Indenture" means this instrument as originally executed or as it may
be supplemented or amended from time to time by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at
<PAGE>
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may be supplemented or amended from time to time by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for
which such Person is Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of
one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such
Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity.
"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," when used with respect to any Security, means the
amount, if any, in addition to principal which is required by a Security,
under the terms and conditions specified therein or as otherwise specified
as contemplated by Section 301, to be paid by the Company to the Holder
thereof in connection with any optional redemption or accelerated payment
of such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Obligation" of any Person with respect to any specified Indebtedness
means any obligation of such Person to pay principal, premium, interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such Person, whether or not a
claim for such post-petition interest is allowed in such Proceeding),
penalties, reimbursement or indemnification amounts, fees, expenses or
other amounts relating to such Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the General Partner of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for
the Company and who shall be satisfactory to the Trustee.
<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, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
(including repayment at the option of the Holder) money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto; provided,
however, that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
are present at a meeting of Holders for quorum purposes, and for the
purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal
thereof that would be (or shall have been declared to be) due and payable,
at the time of such determination, upon a declaration of acceleration of
the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent,
determined pursuant to Section 301 as of the date such Security is
originally issued by the Company, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation
and that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 301,
and (iv) Securities owned by the Company or any other obligor upon the
<PAGE>
Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities owned as provided
in clause (iv) above which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance
with such advice.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over
any other capital stock issued by such Person with respect to any
distribution of such Person's assets, whether by dividend or upon any
voluntary or involuntary liquidation, dissolution or winding up.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of [_________________], and
their respective successors; provided, however, that if any of 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.
<PAGE>
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, 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 Treasury Dealer
at 5:00 p.m. on the third business day preceding such redemption date.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a
word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities of
any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of or within any series means a date fixed by the
Company pursuant to Section 307.
<PAGE>
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the election
of directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen
or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
<PAGE>
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate
or representations with respect to the matters upon which his certificate
or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information as to
such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of the Outstanding
Securities of all series or one or more series, as the case may be, may be
<PAGE>
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed
in writing. If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register. As to any matter relating to beneficial ownership
interests in any Global Security, the appropriate depository's records
shall be dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depository, by
any trust company, bank, banker or other depository, wherever situated, if
such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume
that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The ownership of Bearer Securities may also be proved
in any other manner which the Trustee deems sufficient.
<PAGE>
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at [__________________________]; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Chief
Financial Officer (with a copy to the Company's General Counsel), or
(3) either the Trustee or the Company, by the other party, shall
be sufficient for every purpose hereunder if given by facsimile
transmission, receipt confirmed by telephone followed by an original copy
delivered by guaranteed overnight courier; if to the Trustee at facsimile
number [_________________]; and if to the Company at facsimile number (415)
391-6259.
<PAGE>
SECTION 106. Notice to Holders: Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company
or the Trustee, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, if any,
and not earlier than the earliest date, if any, prescribed for the giving
of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall
constitute a sufficient notification to such Holders for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may
be specified in such Securities on a Business Day, such publication to be
not later than the latest date, if any, and not earlier than the earliest
date, if any, prescribed for the giving of such notice. Any such notice
shall be deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any particular Holder of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
<PAGE>
SECTION 107. Counterparts; Effect of Headings and Table of Contents.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in
the Securities or coupons, 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. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of
the State of New York. This Indenture is subject to the provisions of the
TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has
the right to exchange a Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
any Security or coupon other than a provision in the Securities of any
series which specifically states that such provision shall apply in lieu
hereof), payment of interest or principal (and premium or Make-Whole
Amount, if any) or exchange of such security need not be made at such Place
of Payment on such date, but (except as otherwise provided in the
supplemental indenture with respect to such Security) 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, or on such last day for exchange, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
SECTION 113. Immunity of Stockholders, Directors, Officers and Agents
of the Company. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or because of
any indebtedness evidenced thereby, shall be had against any past, present
or future stockholder, employee, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding
<PAGE>
or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.
SECTION 114. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which
is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
ARTICLE TWO - SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
of each series and the Bearer Securities, if any, of each series and
related coupons shall be substantially in the form of Exhibit A hereto or
in such other form as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, 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 mechanically reproduced on
safety paper 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.
[ ]
-------------------
as Trustee
Dated: By:
-------------- ----------------------------
Authorized Signatory
<PAGE>
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in the form of one or more Global Securities,
then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Global Security or Securities may provide that it or
they shall represent the aggregate amount of all Outstanding Securities of
such series (or such lesser amount as is permitted by the terms thereof)
from time to time endorsed thereon and may also provide 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 any Global Security to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders thereof, of
Outstanding Securities represented thereby shall be made by the Trustee in
such manner or by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 303
or 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Global Security in
permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement
or delivery or redelivery of a Global Security 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 Global Security if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the Global
Security together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last
sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount, if any, and interest on any Global Security
in permanent global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent Global Security (i) in
the case of a permanent Global Security in registered form, the Holder of
such permanent Global Security in registered form, or (ii) in the case of a
permanent Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning set forth
in the Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. This Security
is exchangeable for Securities registered in the name of a person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the
<PAGE>
Depository or another nominee of the Depository or by the
Depository or its nominee to a successor Depository or its
nominee."
ARTICLE THREE - THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) The title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) Any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Securities will be payable;
(5) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which such
Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the persons
to whom such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) The place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities will be
payable, where such Securities may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the Company in
respect of such Securities and this Indenture may be served;
(8) The period or periods, if any, within which, the price or
prices at which and the other terms and conditions upon which such
<PAGE>
Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of the
Company;
(9) The obligation, if any, of the Company to redeem, repay or
purchase such Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) If other than Dollars, the currency or currencies in which
such Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency
or currencies, the manner of determining the equivalent thereof in Dollars
for purposes of the definition of "Outstanding" in Section 101, and the
terms and conditions relating thereto;
(11) Whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any, including any amount due upon redemption, if
any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, but need not be, based on the yield on or trading price of
other securities, including United States Treasury securities or on a
currency, currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be determined;
(12) Whether the principal of (and premium or Make-Whole Amount,
if any) or interest on the Securities of the series are to be payable, at
the election of the Company or a holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(13) Provisions, if any, granting special rights to the holders
of Securities of the series upon the occurrence of such events as may be
specified;
(14) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(15) Whether and under what circumstances the Company will pay
any additional amounts on such Securities in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option
to redeem such Securities in lieu of making such payment;
<PAGE>
(16) Whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the Indenture, and, if
Registered Securities of the series are to be issuable as a Global
Security, the identity of the depository for such series;
(17) The date as of which any Bearer Securities of the series and
any temporary Global Security representing outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) The Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary Global Security on an Interest Payment Date will be paid if other
than in the manner provided herein;
(19) The applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen hereof to the Securities of the
series;
(20) If the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions; and
(21) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
<PAGE>
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms
of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the
Securities of any series, the Securities of such series, other than Global
Securities (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon, and attested
by its Secretary or one of its Assistant Secretaries. The signature of any
of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301,
a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may be, in the
form set forth in Exhibit B-1 to this Indenture or such other certificate
as may be specified with respect to any series of Securities pursuant to
Section 301, dated no earlier than 15 days prior to the earlier of the date
on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture.
If any Security shall be represented by a permanent global Bearer Security,
then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be
deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent Global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver
<PAGE>
any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate or formula, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject
to TIA Section 315(a) through 315(d)) shall be fully protected in relying
upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights generally and to
general equitable principles; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Securities
have been complied with and that, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any
of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an
Opinion of Counsel or an Officers' Certificate otherwise required pursuant
to the preceding paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificates, with appropriate
<PAGE>
modifications to cover such future issuances, shall be delivered at or
before the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed
by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security (including a Global
Security) shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case
of Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Global Securities (which shall be
exchanged as otherwise provided herein or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive Bearer Security
<PAGE>
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
the following provisions of this Section 304(b) shall govern the exchange
of temporary Securities other than through the facilities of The Depository
Trust Company. If any such temporary Security is issued in global form,
then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depository or common
depository (the "Common Depository"), for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
Global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the
Company. On or after the Exchange Date, such temporary Global Security
shall be surrendered by the Common Depository to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any
such temporary Global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary Global Security, upon such presentation by the Common Depository,
such temporary Global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary Global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date
and signed by CEDEL as to the portion of such temporary Global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary
Global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit B-1 to this Indenture
(or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL, the
<PAGE>
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 B-2 to this Indenture (or in such other forms
as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary Global Security
on such Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth as Exhibit B-1 to this Indenture (or in such other forms
as may be established pursuant to Section 301). Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary Global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with respect to
a beneficial interest in a temporary Global Security will be made unless
and until such interest in such temporary Global Security shall have been
exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such
office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is
<PAGE>
hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities
to be exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Registered Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by
Section 301, at the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived
by the Company and the Trustee if there is furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount
of such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like
tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record
<PAGE>
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be, and interest
or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent Global Security is The Depository Trust Company ("DTC"), then,
unless the terms of such Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Securities, a
Global Security may be transferred, in whole but not in part, only to a
nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such Global Security selected or approved by the Company or to a nominee of
such successor to DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depository for the applicable Global
Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 if so required by
applicable law or regulation, the Company shall appoint a successor
depository with respect to such Global Security or Securities. If (x) a
successor depository for such Global Security or Securities is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such unwillingness, inability or ineligibility,
(y) an Event of Default has occurred and is continuing and the beneficial
owners representing a majority in principal amount of the applicable series
of Securities represented by such Global Security or Securities advise DTC
to cease acting as depository for such Global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Security or Securities. If any beneficial owner of an interest in a
permanent global Security is otherwise entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the
permanent Global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such
interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in
such permanent Global Security. On or after the earliest date on which
such interests may be so exchanged, such permanent Global Security shall be
surrendered for exchange by DTC or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
<PAGE>
Company's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further that no
Bearer Security delivered in exchange for a portion of a permanent Global
Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any
portion of a permanent Global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and the opening of
business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest in respect of such
portion of such permanent Global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305
not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period
beginning at the opening of business 15 days before selection of the
Securities to be redeemed under Section 1103 and ending at the close of
business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(B) if such Securities are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of
<PAGE>
that series and like tenor, provided that such Registered Security shall be
erroneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee or the Company, together with, in
proper cases, such security or indemnity as may be required by the Company
or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
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), and any interest on, Bearer
Securities shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation
<PAGE>
of the Company, whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except
as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, interest on any Registered Security
that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered
Security may at the Company's option be paid by (i) mailing a check for
such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 308, to the address of such Person as it
appears on the Security Register or (ii) transfer to an account maintained
by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as
the case may be, with respect to that portion of such permanent global
Security held for its account by Cede & Co. or the Common Depository, as
the case may be, for the purpose of permitting such party to credit the
interest received by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency)
on the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of
the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
<PAGE>
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series and
the date of the proposed payment (which shall not be less than 20 days
after such notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the currency
or currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publications shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
<PAGE>
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium or Make-
Whole Amount, if any), and (subject to Sections 305 and 307) interest on,
such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Person, or
upon such Person's order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for money
payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on
its behalf by a depository shall have any rights under this Indenture with
respect to such Global Security and such depository shall be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depository, as a Holder, with
respect to such Global Security or impair, as between such depository and
owners of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of such depository
(or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
<PAGE>
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and
Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly cancelled 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 cancelled by the
Trustee. If the Company shall so acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by
the Trustee and the Trustee shall deliver a certificate of such destruction
to the Company, unless the Trustee is otherwise directed by a Company
Order.
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 the
Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute instruments in form and substance satisfactory to
the Trustee and the Company acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
<PAGE>
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount in
the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness
on such Securities and such coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium or Make-
Whole Amount, if any) and interest to the date of such deposit
(in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent
under Section 611 and, if money shall have been deposited with and held by
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium
or Make-Whole Amount, if any), and any interest for whose payment such
money has been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by
law.
<PAGE>
ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest on any Security of
that series or of any coupon appertaining thereto, when such interest
or coupon becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security
of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the
Company (or by any Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly responsible or liable
as obligor or guarantor), having an aggregate principal amount
outstanding of at least $25,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
<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
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any Significant
Subsidiary, and the order or decree remains unstayed and in
effect for 90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if Securities of that Series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified in
the terms thereof) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration of acceleration 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):
<PAGE>
(A) all overdue installments of interest on all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium or Make-Whole Amount, if
any, on) any Outstanding Securities of that series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for in
such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or
rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or
Make-Whole Amount, if any) or interest on Securities of that series
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Security of any series and any related coupon when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series
at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest, with
interest upon any overdue principal (and premium or Make-Whole Amount, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such
Securities of such series and collect the moneys adjudged or decreed to be
<PAGE>
payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal, premium or
Make-Whole Amount, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium or Make-Whole Amount, if any) and interest
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities of such series and coupons to make
such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee,
their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party) the Trustee shall be held to represent all
<PAGE>
the Holders of the Securities, and it shall not be necessary to make any
Holders of the Securities parties to any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium or Make-
Whole Amount, if any) or interest, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium or Make-Whole
Amount, if any) and interest, 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, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
<PAGE>
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, and Interest. Notwithstanding any
other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment
of the principal of (and premium or Make-Whole Amount, if any) and (subject
to Sections 305 and 307) interest on such Security or payment of such
coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
any Holder of a Security or coupon has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, the Company,
the Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Security or coupon to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by
<PAGE>
law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of not
less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
SECTION 513. Waiver of Past Defaults. The Holders of not less than
a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security of such series or any
related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
<PAGE>
SECTION 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an 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
of any series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX - THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided
in TIA Section 313(c), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest on any
Security of such series, or in the payment of any sinking fund installment
with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers
of the Trustee in good faith determine that the withholding of such notice
is in the interests of the Holders of the Securities and coupons of such
series; and provided further that in the case of any default or breach of
the character specified in Section 501(4) with respect to the Securities
and coupons of such series, no such notice to Holders shall be given until
at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions
of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
<PAGE>
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document,
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities
of any series; provided that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. The Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
relevant to the facts or matters that are the subject of its inquiry,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
<PAGE>
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or
of the Securities or coupons, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
<PAGE>
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or Section 501(8), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any
coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall
serve as Trustee.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
<PAGE>
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA Section 315(e), any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
<PAGE>
(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 so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
<PAGE>
(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 609, as the case may
be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
In case any Securities or coupons shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have
been authenticated by such predecessor Trustee, any such successor Trustee
may authenticate and deliver such Securities or coupons, in either its own
name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration
of transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of
America or of any state or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements
of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating
<PAGE>
Agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to
the Company and shall give notice of such appointment to all Holders of
Securities of 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.
[___________________]
as Trustee
Dated: By:
----------------- ---------------------------
as Authenticating Agent
Dated: By:
----------------- ---------------------------
Authorized Signatory
<PAGE>
SECTION 612. Certain Duties and Responsibilities of the Trustee.
(a) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but shall not be under any
duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities of
any series has occurred and is continuing, the Trustee shall, with respect
to Securities of such series, exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 612.
<PAGE>
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee
nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required by TIA Section 313 at the times and in the
manner provided by the TIA, which shall initially be not less than every
twelve months commencing on [_________________], 1996. A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which any Securities are
listed, with the Commission and with the Company. The Company will notify
the Trustee when any Securities are listed on any stock exchange.
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
<PAGE>
(a) semiannually, 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, semiannually, upon such dates as are set forth in the
Board Resolution or indenture supplemental hereto authorizing such series,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished, provided, however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in
any such case, (1) either the Company shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing
under the laws of the United States or a State thereof and such successor
corporation shall expressly assume the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any) and any interest on
all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation and (2) immediately after
giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result thereof
as having been incurred by the Company or such Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice or
the lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation 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 corporation, except in the event of a lease, shall be relieved
of any further obligation under this Indenture and the Securities. Such
successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
<PAGE>
Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section
801 is also subject to the condition that the Trustee receive an Officers'
Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor corporation, 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 the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
<PAGE>
principal, to change or eliminate any restrictions on the payment of
principal of or premium or Make-Whole Amount, if any, or interest on
Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
<PAGE>
(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
premium or Make-Whole Amount payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies
in which, any Security or any premium or Make-Whole Amount or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section
513 or Section 1009, 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, provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1009,
or the deletion of this proviso, in accordance with the requirements
of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
excepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
<PAGE>
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any; and Interest. The Company covenants and agrees for the benefit of the
holders of each series of Securities that it will duly and punctually pay
the principal of (and premium or Make-Whole Amount, if any) and interest on
the Securities of that series in accordance with the terms of such series
of Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as
they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the
Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain: (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
<PAGE>
transfer, where Securities of that series may be surrendered for exchange,
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment;
provided, however, that if the Securities of that series are listed on any
stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United
States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside
the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment at the
offices specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Company hereby
appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or Make-Whole Amount or
interest 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 principal of and any premium or
Make-Whole Amount and interest on any Bearer Security shall be made at the
office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or Make-Whole Amount, or interest, as the case may be,
at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
<PAGE>
rescission and of any change in the location of any such other office or
agency. Unless otherwise specified with respect to any Securities pursuant
to Section 301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities the office
or agency of the Company in the Borough of Manhattan, The City of New York,
and initially appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series
of Securities, or as so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent with respect to
any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on any Securities of that series, deposit with a Paying Agent a
sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to
pay the principal (and premium or Make-Whole Amount, if any) or interest
so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or Make-Whole Amount, if any,
or interest and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium or Make-Whole Amount, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
<PAGE>
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium or Make-Whole Amount, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium or Make-
Whole Amount, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium or
Make-Whole Amount, if any) or interest has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal of (and premium or Make-Whole Amount, if any) or
interest on any Security, without interest thereon, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Existence. Subject to Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, all material rights (by articles
of incorporation, by-laws and statute) and material franchises; provided,
however, that the Company shall not be required to preserve any such right
or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company.
SECTION 1005. Maintenance of Properties. The Company will cause all
of its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
the Company and its Subsidiaries shall not be prevented from selling or
<PAGE>
otherwise disposing of their properties for value in the ordinary course of
business.
SECTION 1006. Insurance. The Company will cause each of its and its
Subsidiaries' insurable properties to be insured against loss or damage in
an amount at least equal to their then full insurable value with insurers
of recognized responsibility.
SECTION 1007. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon it or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Statement as to Compliance. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture
and, in the event of any noncompliance, specifying such noncompliance and
the nature and status thereof. For purposes of this Section 1008, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1009. Waiver of Certain Covenants. The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 to 1009, inclusive, 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 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
<PAGE>
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301,
to each Holder of Securities to be redeemed, but failure to give such
notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings
for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any,
(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,
<PAGE>
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to 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.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, which
it may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
<PAGE>
shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) (together with accrued interest, if any,
to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance
with said notice, together with all coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of coupons for such interest; and provided further that
installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section
301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date
at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this
Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount
<PAGE>
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. If a Global Security is so surrendered, the
Company shall execute and the Trustee shall authenticate and deliver to the
depository, without service charge, a new Global Security in a denomination
equal to and in exchange for the unredeemed portion of the principal of the
Global Security so surrendered.
ARTICLE TWELVE - SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of any Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of
such series with all unmatured coupons appertaining thereto and (2) apply
as a credit Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, as provided for by the terms of
such Securities, or which have otherwise been acquired by the Company;
provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
<PAGE>
to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of
any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities, if any, and
(except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with
interest, if any, thereon accrued to the Repayment Date specified in or
pursuant to the terms of such Securities. The Company covenants that on or
prior to the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (or, if so provided by the terms of
the Securities of any series, a percentage of the principal) of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject
to repayment at the option of the Holders thereof will contain an "Option
to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must
receive at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier than 60
days nor later than 30 days prior to the Repayment Date (1) the Security so
providing for such repayment together with the "Option to Elect Repayment"
form on the reverse thereof duly completed by the Holder (or by the
Holder's attorney duly authorized in writing) or (2) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. ("NASD"),
or a commercial bank or trust company in the United States setting forth
the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and
<PAGE>
a guarantee that the Security to be repaid, together with the duly
completed form entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifth Business
Day after the date of such telegram, telex, facsimile transmission or
letter; provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security and form
duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid,
must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise
may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the
Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities,
such Securities or the 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 shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be repaid, except to the extent provided below,
shall be void. Upon surrender of any such Security for repayment in
accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal
amount of such Security so to be repaid shall be paid by the Company,
together with accrued interest, if any, 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 shall default in the payment thereof)
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor
as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
<PAGE>
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the
preceding sentence, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge and at the expense of the Company, a
new Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount
equal to and in exchange for the portion of the principal of such Security
so surrendered which is not to be repaid.
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) defeasance of the Securities of or within
a series under Section 1402 or (b) covenant defeasance of the Securities of
or within a series under Section 1403, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities
and any coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions set forth
in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such Securities
<PAGE>
and any coupons appertaining thereto and this Indenture insofar as such
Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more
fully set forth in such Section, payments in respect of the principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due,
(B) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations
under Sections 1004 to 1009, inclusive, and, if specified pursuant to
Section 301, its obligations under any other covenant contained herein or
in any indenture supplemental hereto, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 to 1009,
inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities
and any coupons appertaining thereto, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section
or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a default or an Event of
Default under Section 501(4) or 501(8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the provisions
of this Article Fourteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
and any coupons appertaining thereto, (1) an amount in such currency,
<PAGE>
currencies or currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity, or
(2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency, currencies
or currency unit in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment of principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining thereto on
the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6) and
501(7) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
<PAGE>
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied with
and an Opinion of Counsel to the effect that either (i) as a result of a
deposit pursuant to subsection (a) above and the related exercise of the
Company's option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any
coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium or Make-Whole
Amount, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms
of such Security to receive payment in a currency or currency unit other
than that in which the deposit pursuant to Section 1404(a) has been made in
respect of such Security, or (b) a Conversion Event occurs in respect of
the currency or currency unit in which the deposit pursuant to Section
1404(a) has been made, the indebtedness represented by such Security and
any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by converting
(from time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the
currency or currency unit in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable market
exchange rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a
<PAGE>
Conversion Event, for such currency or currency unit in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by
law is for the account of the Holders of such Outstanding Securities and
any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Article.
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting
of Holders of Securities of any series may be called at any time and from
time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for
any purpose specified in Section 1501, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than 20 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 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first publication of the notice of such meeting
within 20 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series,
or (2) a Person appointed by an instrument in writing as proxy for a Holder
<PAGE>
or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series,
the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at the reconvening of any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned for
lack of a quorum, the persons entitled to vote 25% in aggregate principal
amount of the then Outstanding Securities shall constitute a quorum for the
taking of any action set forth in the notice of the original 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.
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 persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities represented at such meeting; provided, however,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage in
<PAGE>
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other
action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting, and the meeting may be held as so adjourned without further
notice.
<PAGE>
SECTION 1506. Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record,
at least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the fact, setting forth a copy of
the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall
be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the
Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
<PAGE>
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc.,
General Partner
By:
---------------------------------
[________________]
[________________]
Attest:
------------------------------------
Title:
[___________________],
as Trustee
By:
-------------------------------
Title:
Attest:
--------------------------
Title:
<PAGE>
ACKNOWLEDGMENT
STATE OF [____________________])
) ss:
COUNTY OF )
On the [_______________________] 1998, before me personally came
[_________________], to me known, who, being by me duly sworn, did depose
and say that he is the [__________________] of Sovran Holdings, Inc., one
of the parties described in and which executed the foregoing instrument,
and that he signed his name thereto by authority of the Board of Directors.
[Notarial Seal]
- --------------------------------
Notary Public
Commission Expires
STATE OF [________________])
) ss:
COUNTY OF )
On the [____________________________] 1998, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is a ______________ of [___________________], one of the
parties described in and which executed the foregoing instrument, and that
he/she signed his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
- --------------------------------
Notary Public
Commission Expires
<PAGE>
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository
Trust Company ("DTC") or a nominee of DTC, this Security is a Global
Security and the following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to
the issuer or its agent for registration of transfer, exchange or payment,
and such Security issued is registered in the name of CEDE & CO., or such
other name as requested by an authorized representative of DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO., has an
interest herein.
Unless and until this Security is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred
except as a whole by DTC to a nominee thereof or by a nominee thereof to
DTC or another nominee of DTC or by DTC or any such nominee to a successor
of DTC or a nominee of such successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR
PURPOSES OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE
CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ___% OF ITS
PRINCIPAL AMOUNT, THE ISSUE DATE IS _____________, 19__ [AND] THE YIELD TO
MATURITY IS _____%. [THE METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF __________, 19__
TO _________, 19__, IS ___% OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
SOVRAN ACQUISITION LIMITED PARTNERSHIP
[Designation of Series]
No. ______ $________
SOVRAN ACQUISITION LIMITED PARTNERSHIP, a Delaware Limited Partnership
(herein referred to as the "Company," which term includes any successor
entity under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ______________________________ or
registered assigns the principal sum of _______ Dollars on
_____________________ (the "Stated Maturity Date") [or insert date fixed
for earlier redemption (the "Redemption Date," and together with the Stated
Maturity Date with respect to principal repayable on such date, the
"Maturity Date.")]
[If the Security is to bear interest prior to Maturity, insert -- and to
pay interest thereon from ______________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-
annually on __________ and _________ in each year (each, an "Interest
Payment Date"), commencing __________, at the rate of __% per annum, until
the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
A-1
<PAGE>
Date will, as provided in such Indenture, be paid to the Holder in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which
shall be the ________ or ______ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date [at the office or
agency of the Company maintained for such purpose; provided, however, that
such interest may be paid, at the Company's option, by mailing a check to
such Holder at its registered address or by transfer of funds to an account
maintained by such Holder within the United States]. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Holder in
whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Interest will be computed on the basis of a
360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
the [Stated] Maturity Date and in such case the overdue principal of this
Security shall bear interest at the rate of ___% per annum (to the extent
that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment
of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the
rate of ___% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium or Make-Whole Amount, if any, and, if the Redemption
Date is not an Interest Payment Date, interest on this Security payable on
the Redemption Date] will be paid against presentation of this Security at
the office or agency of the Company maintained for that purpose in
___________________, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will
include interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid or duly provided
for (or from and including ____________, if no interest has been paid on
this Security) to but excluding such Interest Payment Date or the [Stated]
Maturity Date [or Redemption Date, as the case may be.] If any Interest
Payment Date or the [Stated] Maturity Date or [Redemption Date] falls on a
day that is not a Business Day, as defined below, principal, premium or
Make-Whole Amount, if any, and/or interest payable with respect to such
A-2
<PAGE>
Interest Payment Date or [Stated] Maturity Date [or Redemption Date, as the
case may be,] will be paid on the next succeeding Business Day with the
same force and effect as if it were paid on the date such payment was due,
and no interest shall accrue on the amount so payable for the period from
and after such Interest Payment Date or [Stated] Maturity Date [or
Redemption Date, as the case may be.] "Business Day" means any day, other
than a Saturday or Sunday, on which banks in __________________ are not
required or authorized by law or executive order to close.
[If this Security is a Global Security, insert -- All payments of
principal, premium or Make-Whole Amount, if any, and interest in respect of
this Security will be made by the Company in immediately available funds.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature of one of its authorized signatories, this
Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: ______________________ SOVRAN ACQUISITION LIMITED
PARTNERSHIP
By: Sovran Holdings, Inc.,
General Partner
By:______________________________
Attest:
_______________________
Secretary
A-3
<PAGE>
[Reverse of Security]
SOVRAN ACQUISITION LIMITED PARTNERSHIP
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of _____________, 199_ (herein
called the "Indenture") between the Company and _________________, as
Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture with respect to the series of which this
Security is a part), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security
is one of the duly authorized series of Securities designated on the face
hereof (collectively, the "Securities"), [if applicable, insert -- and the
aggregate principal amount of the Securities to be issued under such series
is limited to $______ (except for Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of other Securities).] All
terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the
Indenture.
[If applicable, insert -- The Securities may not be redeemed prior to the
Stated Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l)
(If applicable, insert -- on _________ in any year commencing with the year
____ and ending with the year ____ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal
amount, and (2) ] [If applicable, insert -- at any time [on or after
___________], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal
amount):
If redeemed on or before _______, __% and if redeemed during the 12-month
period beginning _______ of the years indicated at the Redemption Prices
indicated below.
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or
more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
A-4
<PAGE>
[If applicable, insert -- The Securities are subject to redemption (1)
on _______ in any year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _______], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning ________ of the years
indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ------------ -------------------
and thereafter at a Redemption Price equal to ____% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to _______, redeem any Securities as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities
provides for the redemption on _______ in each year, beginning with the
year ____ and ending with the year ____, of [not less than] $_______]
[("mandatory sinking fund") and not more than $_______] aggregate principal
amount of the Securities. [The Securities acquired or redeemed by the
Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise
required to be made in the [describe order] order in which they become
due.]]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the Redemption Date, all as
provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
A-5
<PAGE>
the Company and the rights of the Holders of the Securities under the
Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount
of all Securities issued under the Indenture at the time Outstanding and
affected thereby. The Indenture also contains provisions permitting the
Holders of not less than a majority of the aggregate principal amount of
the Outstanding Securities, on behalf of the Holders of all such
Securities, to waive compliance by the Company with certain provisions of
the Indenture. Furthermore, provisions in the Indenture permit the Holders
of not less than a majority of the aggregate principal amount, in certain
instances, of the Outstanding Securities of any series to waive, on behalf
of all of the Holders of Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and other Securities
issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium
or Make-Whole Amount, if any) and interest on this Security at the times,
places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein [and herein] set forth, the transfer of this Security is
registrable in the Security Register of the Company upon surrender of this
Security for registration of transfer at the office or agency of the
Company in any place where the principal of (and premium or Make-Whole
Amount, if any) and interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by, the Holder
hereof or by his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations
therein [and herein] set forth, this Security is exchangeable for a like
aggregate principal amount of Securities of different authorized
denominations but otherwise having the same terms and conditions, as
requested by the Holder hereof surrendering the same.
The Securities of this series are issuable only in registered form
[without coupons] in denominations of $_______ and any integral multiple
thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith,
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
A-6
<PAGE>
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium or Make-Whole Amount, if any, or the interest on this Security, or
for any claim based hereon, or otherwise in respect hereof, or based on or
in respect of the Indenture or any indenture supplemental thereto, against
any past, present or future stockholder, employee, officer or director, as
such, of the Company or of any successor, either directly or through the
Company or any successor, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of [the State of New York] applicable to
agreements made and to be performed entirely in such State.
A-7
<PAGE>
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you
may advise Sovran Acquisition Limited Partnership or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale
during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner
is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), this is
to further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and 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
B-1
<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: ________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the Exchange
Date, as applicable]
[Name of Person Making Certification]
------------------------------------
(Authorized Signature)
Name:
Title:
B-2
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic
transmission from each of the persons appearing in our records as persons
entitled to a portion of the principal amount set forth below (our "Member
Organizations") substantially in the form attached hereto, as of the date
hereof, [U.S.$] principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Sovran
Acquisition Limited Partnership or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"Possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of
the temporary Global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
B-3
<PAGE>
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
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: ____________ _____
[To be dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System [CEDEL S.A.]
By:
--------------------------------------
B-4
<PAGE>
EXHIBIT 4.3
- ---------------------------------------------------------------------------
SOVRAN ACQUISITION LIMITED PARTNERSHIP
TO
[ ]
Trustee
------------------------------
Indenture
Dated as of [______________,] 1998
------------------------------
Subordinated Debt Securities
- ---------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY................................................. 1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................................. 1
SECTION 101. Definitions............................................ 1
SECTION 102. Compliance Certificates and Opinions...................12
SECTION 103. Form of Documents Delivered to Trustee.................13
SECTION 104. Acts of Holders........................................13
SECTION 105. Notices, etc., to Trustee and Company..................15
SECTION 106. Notice to Holders: Waiver..............................16
SECTION 107. Counterparts; Effect of Headings and Table of
Contents...............................................17
SECTION 108. Successors and Assigns.................................17
SECTION 109. Severability Clause....................................17
SECTION 110. Benefits of Indenture..................................17
SECTION 111. Governing Law..........................................17
SECTION 112. Legal Holidays.........................................17
SECTION 113. Immunity of Stockholders, Directors, Officers and
Agents of the Company.................................18
SECTION 114. Conflict with Trust Indenture Act......................18
ARTICLE TWO - SECURITIES FORMS..........................................18
SECTION 201. Forms of Securities....................................18
SECTION 202. Form of Trustee's Certificate of Authentication........18
SECTION 203. Securities Issuable in Global Form.....................19
ARTICLE THREE - THE SECURITIES..........................................20
SECTION 301. Amount Unlimited; Issuable in Series...................20
SECTION 302. Denominations..........................................24
SECTION 303. Execution, Authentication, Delivery and Dating.........24
SECTION 304. Temporary Securities...................................26
SECTION 305. Registration, Registration of Transfer and Exchange....29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.......32
SECTION 307. Payment of Interest; Interest Rights Preserved.........33
SECTION 308. Persons Deemed Owners..................................35
SECTION 309. Cancellation...........................................36
SECTION 310. Computation of Interest................................37
ARTICLE FOUR - SATISFACTION AND DISCHARGE...............................37
SECTION 401. Satisfaction and Discharge of Indenture................37
SECTION 402. Application of Trust Funds.............................38
ARTICLE FIVE - REMEDIES.................................................39
SECTION 501. Events of Default......................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment.....40
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................41
SECTION 504. Trustee May File Proofs of Claim.......................42
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons..................................43
SECTION 506. Application of Money Collected.........................43
SECTION 507. Limitation on Suits....................................44
<PAGE>
Page
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, and Interest.....44
SECTION 509. Restoration of Rights and Remedies.....................45
SECTION 510. Rights and Remedies Cumulative.........................45
SECTION 511. Delay or Omission Not Waiver...........................45
SECTION 512. Control by Holders of Securities.......................45
SECTION 513. Waiver of Past Defaults................................46
SECTION 514. Waiver of Usury, Stay or Extension Laws................46
SECTION 515. Undertaking for Costs..................................46
ARTICLE SIX - THE TRUSTEE...............................................47
SECTION 601. Notice of Defaults.....................................47
SECTION 602. Certain Rights of Trustee..............................47
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.............................................49
SECTION 604. May Hold Securities....................................49
SECTION 605. Money Held in Trust....................................49
SECTION 606. Compensation and Reimbursement.........................49
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests..............................................50
SECTION 608. Resignation and Removal; Appointment of Successor......50
SECTION 609. Acceptance of Appointment by Successor.................52
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business...............................................53
SECTION 611. Appointment of Authenticating Agent....................53
SECTION 612. Certain Duties and Responsibilities of the Trustee.....55
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.......56
SECTION 701. Disclosure of Names and Addresses of Holders...........56
SECTION 702. Reports by Trustee.....................................56
SECTION 703. Reports by Company.....................................57
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders.............................................57
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE....................................................58
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions.............................................58
SECTION 802. Rights and Duties of Successor Corporation.............58
SECTION 803. Officers' Certificate and Opinion of Counsel...........58
ARTICLE NINE - SUPPLEMENTAL INDENTURES..................................59
SECTION 901. Supplemental Indentures Without Consent of Holders.....59
SECTION 902. Supplemental Indentures with Consent of Holders........60
SECTION 903. Execution of Supplemental Indentures...................62
SECTION 904. Effect of Supplemental Indentures......................62
SECTION 905. Conformity with Trust Indenture Act....................62
SECTION 906. Reference in Securities to Supplemental Indentures.....62
ARTICLE TEN - COVENANTS.................................................62
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
if any; and Interest...................................62
SECTION 1002. Maintenance of Office or Agency.......................63
<PAGE>
Page
SECTION 1003. Money for Securities Payments to Be Held in Trust......64
SECTION 1004. Existence..............................................66
SECTION 1005. Maintenance of Properties..............................66
SECTION 1006. Insurance..............................................66
SECTION 1007. Payment of Taxes and Other Claims......................66
SECTION 1008. Statement as to Compliance.............................66
SECTION 1009. Waiver of Certain Covenants............................67
ARTICLE ELEVEN - REDEMPTION OF SECURITIES...............................67
SECTION 1101. Applicability of Article...............................67
SECTION 1102. Election to Redeem; Notice to Trustee..................67
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......67
SECTION 1104. Notice of Redemption...................................68
SECTION 1105. Deposit of Redemption Price............................69
SECTION 1106. Securities Payable on Redemption Date..................70
SECTION 1107. Securities Redeemed in Part............................70
ARTICLE TWELVE - SINKING FUNDS..........................................71
SECTION 1201. Applicability of Article...............................71
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..71
SECTION 1203. Redemption of Securities for Sinking Fund..............71
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS...................72
SECTION 1301. Applicability of Article...............................72
SECTION 1302. Repayment of Securities................................72
SECTION 1303. Exercise...............................................72
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable............................................73
SECTION 1305. Securities Repaid in Part..............................74
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE...................74
SECTION 1401. Applicability of Article: Company's Option to Effect
Defeasance or Covenant Defeasance......................74
SECTION 1402. Defeasance and Discharge...............................75
SECTION 1403. Covenant Defeasance....................................75
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........76
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions...............77
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES.....................78
SECTION 1501. Purposes for Which Meetings May Be Called..............78
SECTION 1502. Call, Notice and Place of Meetings.....................79
SECTION 1503. Persons Entitled to Vote at Meetings...................79
SECTION 1504. Quorum; Action.........................................79
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................80
SECTION 1506. Counting Votes and Recording Action of Meetings........81
ARTICLE SIXTEEN - SUBORDINATION OF SECURITIES...........................82
SECTION 1601. Agreement to Subordinate...............................82
SECTION 1602. Payment Over of Proceeds upon Dissolution, Etc.........82
SECTION 1603. No Payment When Senior Indebtedness in Default.........83
SECTION 1604. Reliance by Senior Indebtedness on Subordination
Provisions.............................................84
<PAGE>
Page
SECTION 1605. Subrogation to Rights of Holders of Senior
Indebtedness...........................................85
SECTION 1606. Provisions Solely to Define Relative Rights............85
SECTION 1607. Trustee to Effectuate Subordination....................85
SECTION 1608. No Waiver of Subordination Provisions..................86
SECTION 1609. Notice to Trustee......................................86
SECTION 1610. Reliance on Judicial Order or Certificate of
Liquidating Agent......................................87
SECTION 1611. Trustee Not Fiduciary for Holders of Senior
Indebtedness...........................................88
SECTION 1612. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.......................88
SECTION 1613. Article Applicable to Paying Agents....................88
ARTICLE SEVENTEEN - CONVERSION OF SECURITIES............................88
SECTION 1701. Applicability of Article; Conversion Privilege and
Conversion Price.......................................88
SECTION 1702. Exercise of Conversion Privilege.......................89
SECTION 1703. Fractions of Shares....................................90
SECTION 1704. Adjustment of Conversion Price.........................91
SECTION 1705. Notice of Adjustments of Conversion Price..............95
SECTION 1706. Notice of Certain Corporate Action.....................95
SECTION 1707. Company to Reserve Common Stock........................96
SECTION 1708. Taxes on Conversion....................................96
SECTION 1709. Covenants as to Common Stock...........................96
SECTION 1710. Cancellation of Converted Securities...................96
SECTION 1711. Provisions in Case of Consolidation, Merger or Sale
of Assets; Special Distribution........................97
SECTION 1712. Trustee Adjustment Disclaimer; Company Determination
Final..................................................98
SECTION 1713. When No Adjustment Required............................99
SECTION 1714. Equivalent Adjustments.................................99
SIGNATURES AND SEALS....................................................100
ACKNOWLEDGMENT..........................................................101
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED SECURITY........A-1
EXHIBIT B
FORMS OF CERTIFICATION............................................B-1
<PAGE>
SOVRAN ACQUISITION LIMITED PARTNERSHIP
Reconciliation and tie between Trust Indenture Act of 1939 (the
"Trust Indenture Act" or "TIA") and Indenture, dated as of
[________________,] 1998.
Trust Indenture
Act Section Indenture Section
- ----------------- -----------------
(S) 310(a)(1) ............................. 607
(a)(2) ............................. 607
(b) ............................. 607, 608
(S) 312(c) ............................. 701
(S) 313(a) ............................. 702
(c) ............................. 702
(S) 314(a) ............................. 703
(a)(4) ............................. 1009
(c)(1) ............................. 102
(c)(2) ............................. 102
(e) ............................. 102
(S) 315(b) ............................. 601
(S) 316(a) (last sentence).............. 101 ("Outstanding")
(a)(1)(A) ............................. 502, 512
(a)(1)(B) ............................. 513
(b) ............................. 508
(S) 317(a)(1) ............................. 503
(a)(2) ............................. 504
(S) 318(a) ............................. 111
(c) ............................. 111
- ---------------
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 TIA Section 318(c), which
provides that the provisions of TIA 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.
<PAGE>
INDENTURE, dated as of [_________________,] 1998, between SOVRAN
ACQUISITION LIMITED PARTNERSHIP, a limited partnership organized under the
laws of the State of Delaware (hereinafter called the "Company"), having
its principal office at 5166 Main Street, Williamsville, New York 14221,
and [_________________, a banking association organized under the laws of
the _____________________________ as Trustee hereunder (hereinafter called
the "Trustee"), having a Corporate Trust Office at
_________________________].
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes subordinated debt securities (hereinafter called the
"Securities") evidencing its unsecured and subordinated indebtedness, and
has duly authorized the execution and delivery of this Indenture to provide
for the issuance from time to time of the Securities, to be issued in one
or more Series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act" or "TIA"), that are deemed
to be incorporated into this Indenture and shall, to the extent applicable,
be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities,
as follows:
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in TIA Section 311, shall have the meanings assigned
to them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof "and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
<PAGE>
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 hereof to act on behalf of the Trustee to
authenticate Securities.
"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 any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company's
General Partner or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company's General Partner 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 respect to any
Securities issued pursuant to Section 301, any day, other than a Saturday
or Sunday, that is not a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law,
regulation or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights to purchase, warrants, options or other equivalents
(however designated) of corporate stock or other equity of such 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 Securities Exchange Act of
1934, 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.
<PAGE>
"Common Stock" means, with respect to any Person, all shares of
capital stock issued by such Person other than Preferred Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, the President or a Vice President, and by its Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker 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. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by
the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third business day preceding such redemption date, as set
forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
business day, the average of all Reference Treasury Dealer Quotations for
such redemption date.
"Consolidated Net Assets" means as of any particular time the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom all current liabilities except
for (a) notes and loans payable, (b) current maturities of long-term debt
and (c) current maturities of obligations under capital leases, all as set
forth on the most recent consolidated balance sheet of the Company and its
consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles and practices as in effect on
[_____________] [the date of the Senior Indenture].
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency
and for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities
or (iii) any currency unit (or composite currency) other than the ECU for
the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
[______________________________].
<PAGE>
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"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, except as otherwise provided herein, generally accepted
accounting principles, as in effect from time to time, as used in the
United States applied on a consistent basis.
"General Partner" means Sovran Holdings, Inc., a Delaware corporation
and general partner of the Company, or any successor general partner.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to and registered in the name of the depository
for such series, or its nominee, in accordance with Section 305, and
bearing the legend prescribed in Section 203.
"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
<PAGE>
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Guaranty" by any Person means any Obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including, without limitation, every Obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring the
holder of such Indebtedness of the payment of such Indebtedness or (iii) to
maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that a Guaranty by any
Person shall not include endorsements by such Person for collection or
deposit, in either case in the ordinary course of business. The terms
"Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without duplication,
(i) any Obligation of such Person relating to any indebtedness of such
Person (A) for borrowed money (whether or not the recourse of the lender is
to the whole of the assets, of such person or only to a portion thereof),
(B) evidenced by notes, debentures or similar instruments (including
purchase money obligations) given in connection with the acquisition of any
property or assets (other than trade accounts payable for inventory or
similar property acquired in the ordinary course of business), including
securities, for the payment of which such Person is liable, directly or
indirectly, or the payment of which is secured by a lien, charge or
encumbrance on property or assets of such Person, (C) for goods, materials
or services purchased in the ordinary course of business (other than trade
accounts payable arising in the ordinary course of business), (D) with
respect to letters of credit or bankers acceptances issued for the account
of such Person or performance, surety or similar bonds, (E) for the payment
of money relating to a Capitalized Lease Obligation or (F) under interest
rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the
kind described in the preceding clause (i), which such Person has
Guaranteed or which is otherwise its legal liability; and (iii) any and all
deferrals, renewals, extensions and refunding of, or amendments,
modifications or supplements to, any liability of the kind described in any
of the preceding clauses (i) or (ii).
<PAGE>
"Indenture" means this instrument as originally executed or as it may
be supplemented or amended from time to time by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may be supplemented or amended from time to time by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for
which such Person is Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of
one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such
Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity.
"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," when used with respect to any Security, means the
amount, if any, in addition to principal which is required by a Security,
under the terms and conditions specified therein or as otherwise specified
as contemplated by Section 301, to be paid by the Company to the Holder
thereof in connection with any optional redemption or accelerated payment
of such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Obligation" of any Person with respect to any specified Indebtedness
means any obligation of such Person to pay principal, premium, interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such Person, whether or not a
claim for such post-petition interest is allowed in such Proceeding),
penalties, reimbursement or indemnification amounts, fees, expenses or
other amounts relating to such Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company's General Partner, and delivered to the Trustee.
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for
the Company and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption (including repayment at the option of the Holder) money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided, however, that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
are present at a meeting of Holders for quorum purposes, and for the
purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal
thereof that would be (or shall have been declared to be) due and payable,
at the time of such determination, upon a declaration of acceleration of
the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent,
determined pursuant to Section 301 as of the date such Security is
originally issued by the Company, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause
<PAGE>
(i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation
and that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 301,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities owned as provided
in clause (iv) above which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance
with such advice.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Company.
"Payment Blockage Notice" and "Payment Blockage Period" have the
respective meanings specified in Section 1603.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over
any other capital stock issued by such Person with respect to any
distribution of such Person's assets, whether by dividend or upon any
voluntary or involuntary liquidation, dissolution or winding up.
"Proceeding" has the meaning specified in Section 1602.
<PAGE>
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of [__________________], and
their respective successors; provided, however, that if any of 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.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, 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 Treasury Dealer
at 5:00 p.m. on the third business day preceding such redemption date.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a
word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated
<PAGE>
and delivered under this Indenture, exclusive, however, of Securities of
any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created, incurred,
assumed or guaranteed by the Company, other than the following: (1) any
Indebtedness as to which, in the instrument evidencing such Indebtedness or
pursuant to which such Indebtedness was issued, it is expressly provided
that such Indebtedness is subordinate in right of payment to all
Indebtedness of the Company not expressly subordinated to such
Indebtedness; (2) any Indebtedness which by its terms refers explicitly to
the Securities and states that such Indebtedness shall not be senior, shall
be pari passu or shall be subordinated in right of payment to the
Securities; and (3) with respect to any series of Securities, any
Indebtedness of the Company evidenced by Securities of the same or of
another series. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include: (a) Indebtedness of or amounts owed
by the Company for compensation to employees, or for goods, materials or
services purchased in the ordinary course of business, or (b) Indebtedness
of the Company to a Subsidiary of the Company.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the
Company pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the election
of directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
<PAGE>
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen
or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
<PAGE>
SECTION 103. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate
or representations with respect to the matters upon which his certificate
or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information as to
such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of the Outstanding
Securities of all series or one or more series, as the case may be, may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed
in writing. If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
<PAGE>
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register. As to any matter relating to beneficial ownership
interests in any Global Security, the appropriate depository's records
shall be dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository,
wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.
<PAGE>
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, any Security Registrar, any Paying Agent, any Authenticating
Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at [________________________];
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to the Trustee by
the Company, Attention: Chief Financial Officer (with a copy to the
Company's General Counsel), or
(3) either the Trustee or the Company, by the other party, shall
be sufficient for every purpose hereunder if given by facsimile
transmission, receipt confirmed by telephone followed by an original
copy delivered by guaranteed overnight courier; if to the Trustee at
facsimile number [_________________]; and if to the Company at
facsimile number (415) 391-6259.
SECTION 106. Notice to Holders: Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest date, if
any, and not earlier than the earliest date, if any, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall
constitute a sufficient notification to such Holders for every purpose
hereunder.
<PAGE>
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may
be specified in such Securities on a Business Day, such publication to be
not later than the latest date, if any, and not earlier than the earliest
date, if any, prescribed for the giving of such notice. Any such notice
shall be deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any particular Holder of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Counterparts; Effect of Headings and Table of Contents.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in
the Securities or coupons, 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.
<PAGE>
SECTION 111. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of
the State of New York. This Indenture is subject to the provisions of the
TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has
the right to convert or exchange a Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision
shall apply in lieu hereof), payment of interest or principal (and premium
or Make-Whole Amount, if any) or conversion or exchange of such security
need not be made at such Place of Payment on such date, but (except as
otherwise provided in the supplemental indenture with respect to such
Security) 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, or on such last day for conversion or
exchange, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
SECTION 113. Immunity of Stockholders, Directors, Officers and Agents
of the Company. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or because of
any indebtedness evidenced thereby, shall be had against any past, present
or future stockholder, employee, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding
or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.
SECTION 114. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which
is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
ARTICLE TWO - SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
of each series and the Bearer Securities, if any, of each series and
related coupons shall be substantially in the form of Exhibit A hereto or
in such other form as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, shall have such appropriate
insertions, omissions, substitutions and other variations as are required
<PAGE>
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 mechanically reproduced on
safety paper 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.
[ ]
as Trustee
Dated:____________________ By:____________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in the form of one or more Global Securities,
then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Global Security or Securities may provide that it or
they shall represent the aggregate amount of all Outstanding Securities of
such series (or such lesser amount as is permitted by the terms thereof)
from time to time endorsed thereon and may also provide 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 any Global Security to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders thereof, of
Outstanding Securities represented thereby shall be made by the Trustee in
such manner or by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 303
or 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Global Security in
permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement
or delivery or redelivery of a Global Security shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
<PAGE>
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the Global
Security together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last
sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount, if any, and interest on any Global Security
in permanent global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent Global Security (i) in
the case of a permanent Global Security in registered form, the Holder of
such permanent Global Security in registered form, or (ii) in the case of a
permanent Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning
set forth in the Indenture hereinafter referred to and
is registered in the name of a Depository or a nominee
of a Depository. This Security is exchangeable for
Securities registered in the name of a person other
than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not
be transferred except as a whole by the Depository to a
nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the
Depository or by the Depository or its nominee to a
successor Depository or its nominee."
ARTICLE THREE - THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) The title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) Any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
<PAGE>
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than
the principal amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the maturity
thereof, or (if applicable) the portion of the principal amount of
such Securities that is convertible into Common Stock or Preferred
Stock, or the method by which any such portion shall be determined;
(4) If convertible, the terms on which such Securities are
convertible, including the initial conversion price or rate and the
conversion period and any applicable limitations on the ownership or
transferability of Common Stock or Preferred Stock receivable on
conversion;
(5) The date or dates, or the method for determining such date
or dates, on which the principal of such Securities will be payable;
(6) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which such
Securities will bear interest, if any;
(7) The date or dates, or the method for determining such date
or dates, from which any such interest will accrue, the dates on which
any such interest will be payable, the record dates for such interest
payment dates, or the method by which such dates shall be determined,
the persons to whom such interest shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(8) The place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities
will be payable, where such Securities may be surrendered for
conversion or registration of transfer or exchange and where notices
or demands to or upon the Company in respect of such Securities and
this Indenture may be served;
(9) The period or periods, if any, within which, the price or
prices at which and the other terms and conditions upon which such
Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of the
Company;
(10) The obligation, if any, of the Company to redeem, repay or
purchase such Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(11) If other than Dollars, the currency or currencies in which
such Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
<PAGE>
currency or currencies, the manner of determining the equivalent
thereof in Dollars for purposes of the definition of "Outstanding" in
Section 101, and the terms and conditions relating thereto;
(12) Whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any, including any amount due upon
redemption, if any) or interest, if any, on such Securities may be
determined with reference to an index, formula or other method (which
index, formula or method may, but need not be, based on the yield on
or trading price of other securities, including United States Treasury
securities or on a currency, currencies, currency unit or units, or
composite currency or currencies) and the manner in which such amounts
shall be determined;
(13) Whether the principal of (and premium or Make-Whole Amount,
if any) or interest on the Securities of the series are to be payable,
at the election of the Company or a holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility
for, determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency
or currencies in which such Securities are to be so payable;
(14) Provisions, if any, granting special rights to the holders
of Securities of the series upon the occurrence of such events as may
be specified;
(15) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(16) Whether and under what circumstances the Company will pay
any additional amounts on such Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities in lieu of making such
payment;
(17) Whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
<PAGE>
in the manner provided in the Indenture, and, if Registered Securities
of the series are to be issuable as a Global Security, the identity of
the depository for such series;
(18) The date as of which any Bearer Securities of the series and
any temporary Global Security representing outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(19) The Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary Global Security on an Interest Payment
Date will be paid if other than in the manner provided herein;
(20) The applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen hereof to the Securities of
the series;
(21) 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;
(22) The obligation, if any, of the Company to permit the
conversion of the Securities of such series into Common Stock or
Preferred Stock, as the case may be, and the terms and conditions upon
which such conversion shall be effected (including, without
limitation, the initial conversion price or rate, the conversion
period, any adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for purposes
of conversion); 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 shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms
of the Securities of such series.
<PAGE>
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the
Securities of any series, the Securities of such series, other than Global
Securities (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon, and attested
by its Secretary or one of its Assistant Secretaries. The signature of any
of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301,
a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may be, in the
form set forth in Exhibit B-1 to this Indenture or such other certificate
as may be specified with respect to any series of Securities pursuant to
Section 301, dated no earlier than 15 days prior to the earlier of the date
on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture.
If any Security shall be represented by a permanent global Bearer Security,
then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be
deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent Global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
<PAGE>
determining the terms of particular Securities of such series, such as
interest rate or formula, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject
to TIA Section 315(a) through 315(d)) shall be fully protected in relying
upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed
and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by
the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization and other similar laws of
general applicability relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles;
and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an
Opinion of Counsel or an Officers' Certificate otherwise required pursuant
to the preceding paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificates, with appropriate
modifications to cover such future issuances, shall be delivered at or
before the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
<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 Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed
by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security (including a Global
Security) shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case
of Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Global Securities (which shall be
exchanged as otherwise provided herein or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
<PAGE>
(b) Unless otherwise provided in or pursuant to a Board Resolution,
the following provisions of this Section 304(b) shall govern the exchange
of temporary Securities other than through the facilities of The Depository
Trust Company. If any such temporary Security is issued in global form,
then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depository or common
depository (the "Common Depository"), for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
Global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the
Company. On or after the Exchange Date, such temporary Global Security
shall be surrendered by the Common Depository to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary Global Security to be
exchanged. The definitive Securities to be delivered in exchange for any
such temporary Global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary Global Security, upon such presentation by the Common Depository,
such temporary Global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary Global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date
and signed by CEDEL as to the portion of such temporary Global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary
Global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit B-1 to this Indenture
(or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL, the
Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary Global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary Global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
<PAGE>
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 B-2 to this Indenture (or in such other forms
as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary Global Security
on such Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth as Exhibit B-1 to this Indenture (or in such other forms
as may be established pursuant to Section 301). Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary Global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with respect to
a beneficial interest in a temporary Global Security will be made unless
and until such interest in such temporary Global Security shall have been
exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such
office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
<PAGE>
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities
to be exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Registered Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by
Section 301, at the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived
by the Company and the Trustee if there is furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount
of such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like
tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be, and interest
or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
<PAGE>
respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent Global Security is The Depository Trust Company ("DTC"), then,
unless the terms of such Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Securities, a
Global Security may be transferred, in whole but not in part, only to a
nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such Global Security selected or approved by the Company or to a nominee of
such successor to DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depository for the applicable Global
Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 if so required by
applicable law or regulation, the Company shall appoint a successor
depository with respect to such Global Security or Securities. If (x) a
successor depository for such Global Security or Securities is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such unwillingness, inability or ineligibility,
(y) an Event of Default has occurred and is continuing and the beneficial
owners representing a majority in principal amount of the applicable series
of Securities represented by such Global Security or Securities advise DTC
to cease acting as depository for such Global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Security or Securities. If any beneficial owner of an interest in a
permanent global Security is otherwise entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the
permanent Global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such
interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in
such permanent Global Security. On or after the earliest date on which
such interests may be so exchanged, such permanent Global Security shall be
surrendered for exchange by DTC or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further that no
Bearer Security delivered in exchange for a portion of a permanent Global
Security shall be mailed or otherwise delivered to any location in the
<PAGE>
United States. If a Registered Security is issued in exchange for any
portion of a permanent Global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and the opening of
business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest in respect of such
portion of such permanent Global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305
not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period
beginning at the opening of business 15 days before selection of the
Securities to be redeemed under Section 1103 and ending at the close of
business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(B) if such Securities are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee or the Company, together with, in
<PAGE>
proper cases, such security or indemnity as may be required by the Company
or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal
of (and premium or Make-Whole Amount, if any), and any interest on, Bearer
Securities shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
<PAGE>
SECTION 307. Payment of Interest; Interest Rights Preserved. Except
as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, interest on any Registered Security
that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered
Security may at the Company's option be paid by (i) mailing a check for
such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 308, to the address of such Person as it
appears on the Security Register or (ii) transfer to an account maintained
by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as
the case may be, with respect to that portion of such permanent global
Security held for its account by Cede & Co. or the Common Depository, as
the case may be, for the purpose of permitting such party to credit the
interest received by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency)
on the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of
the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
<PAGE>
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the
Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at
least once in an Authorized Newspaper in each Place of Payment, but
such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office
or agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
<PAGE>
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium or Make-
Whole Amount, if any), and (subject to Sections 305 and 307) interest on,
such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. All such payments so made to any such Person, or
upon such Person's order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for money
payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on
its behalf by a depository shall have any rights under this Indenture with
respect to such Global Security and such depository shall be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depository, as a Holder, with
respect to such Global Security or impair, as between such depository and
owners of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of such depository
(or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder, conversion
or registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and
Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly cancelled 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 cancelled by the
Trustee. If the Company shall so acquire any of the Securities, however,
<PAGE>
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 cancelled as
provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by
the Trustee and the Trustee shall deliver a certificate of such destruction
to the Company, unless the Trustee is otherwise directed by a Company
Order.
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 the
Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute instruments in form and substance satisfactory to
the Trustee and the Company acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305, (ii) Securities
and coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
<PAGE>
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not theretofore delivered
to the Trustee for cancellation, for principal (and premium or Make-Whole
Amount, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent
under Section 611 and, if money shall have been deposited with and held by
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium
or Make-Whole Amount, if any), and any interest for whose payment such
money has been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest on any Security of
that series or of any coupon appertaining thereto, when such interest
<PAGE>
or coupon becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security
of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the
Company (or by any Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly responsible or liable
as obligor or guarantor), having an aggregate principal amount
outstanding of at least $25,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
<PAGE>
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains unstayed
and in effect for 90 days; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if Securities of that Series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified in
the terms thereof) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration of acceleration 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 all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium or Make-Whole Amount, if
any, on) any Outstanding Securities of that series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for in
such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or
rates borne by or provided for in such Securities, and
<PAGE>
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or
Make-Whole Amount, if any) or interest on Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series and any related coupon when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series
at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest, with
interest upon any overdue principal (and premium or Make-Whole Amount, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such
Securities of such series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
<PAGE>
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal, premium or
Make-Whole Amount, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium or Make-Whole Amount, if any) and interest
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities of such series and coupons to make
such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee,
their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any
Holders of the Securities parties to any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
<PAGE>
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, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole Amount, if
any) and interest, 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, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
<PAGE>
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, and Interest. Notwithstanding any
provision in this Indenture, the Holder of any Security or coupon shall
have the right which is absolute and unconditional to receive payment of
the principal of (and premium or Make-Whole Amount, if any) and (subject to
Sections 305 and 307) interest on such Security or payment of such coupon
on the respective due dates expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
any Holder of a Security or coupon has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, the Company,
the Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Security or coupon to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of not
less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
<PAGE>
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security of such series or any
related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an 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
of any series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
<PAGE>
ARTICLE SIX - THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of
(or premium or Make-Whole Amount, if any) or interest on any Security of
such series, or in the payment of any sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series;
and provided further that in the case of any default or breach of the
character specified in Section 501(4) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
<PAGE>
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of any series; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such examination shall be paid by the Holders or, if paid by the
Trustee, shall be repaid by the Holders upon demand. The Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
relevant to the facts or matters that are the subject of its inquiry,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or
of the Securities or coupons, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
<PAGE>
Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed with the
Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or Section 501(8), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any
coupons.
The provisions of this Section shall survive the termination of this
Indenture.
<PAGE>
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall
serve as Trustee.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA Section 315(e), any
Holder of a Security who has been a bona fide Holder of a Security for at
<PAGE>
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series in the manner provided for notices to the Holders of Securities
in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of
its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
<PAGE>
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section 609, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
In case any Securities or coupons shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have
been authenticated by such predecessor Trustee, any such successor Trustee
<PAGE>
may authenticate and deliver such Securities or coupons, in either its own
name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration
of transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of
America or of any state or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements
of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to
the Company and shall give notice of such appointment to all Holders of
<PAGE>
Securities of the series with respect to which such Authenticating Agent
will serve in the manner set forth in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon,
in addition to or in lieu of the Trustee's certificate of authentication,
an alternate certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ]
as Trustee
Dated:___________________ By:___________________________________
as Authenticating Agent
Dated:___________________ By:___________________________________
Authorized Signatory
SECTION 612. Certain Duties and Responsibilities of the Trustee.
(a) With respect to the Securities of any series, except during
the continuance of an Event of Default with respect to the Securities of
such series:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture, but shall
not be under any duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities
of any series has occurred and is continuing, the Trustee shall, with
respect to Securities of such series, exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
<PAGE>
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series;
and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 612.
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee
nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required by TIA Section 313 at the times and in the
manner provided by the TIA, which shall initially be not less than every
twelve months commencing on [_________________], 1996. A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which any Securities are
listed, with the Commission and with the Company. The Company will notify
the Trustee when any Securities are listed on any stock exchange.
<PAGE>
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of such Sections, then it will file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within
30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries
of any information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to
time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, 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, semiannually, upon such dates as are set forth in the
Board Resolution or indenture supplemental hereto authorizing such series,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar,
no such list shall be required to be furnished.
<PAGE>
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in
any such case, (1) either the Company shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing
under the laws of the United States or a State thereof and such successor
corporation shall expressly assume the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any) and any interest on
all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation and (2) immediately after
giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result thereof
as having been incurred by the Company or such Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice or
the lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation 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 corporation, except in the event of a lease, shall be relieved
of any further obligation under this Indenture and the Securities. Such
successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor corporation, complies with the provisions of this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
<PAGE>
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
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of
or premium or Make-Whole Amount, if any, or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
<PAGE>
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect; or
(11) to make provisions with respect to Holders' rights of
conversion with respect to any series of Securities pursuant to
Articles Seventeen.
SECTION 902. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of
or interest on, any Security; or reduce the principal amount thereof
or the rate or amount of interest thereon, or any premium or Make-
Whole Amount payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the currency or currencies, currency unit
or units or composite currency or currencies in which, any Security or
any premium or Make-Whole Amount 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 (if
Securities of such series are convertible) adversely affect the right
<PAGE>
of the Holder to convert any Security as provided in Article
Seventeen, or modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner materially adverse to
the Holders; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (or compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, 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, provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1009,
or the deletion of this proviso, in accordance with the requirements
of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
<PAGE>
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any; and Interest. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay
the principal of (and premium or Make-Whole Amount, if any) and interest on
the Securities of that series in accordance with the terms of such series
of Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as
they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the
Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment or conversion, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain: (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment or conversion,
where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
series are listed on any stock exchange located outside the United States
and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in any required city located
outside the United States, as the case may be, so long as the Securities of
that series are listed on such exchange; and (C) subject to any laws or
<PAGE>
regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment or
conversion at the offices specified in the Security, in London, England,
and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or Make-Whole Amount or
interest 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 principal of and any premium or
Make-Whole Amount and interest on any Bearer Security shall be made at the
office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or Make-Whole Amount, or interest, as the case may be,
at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency. Unless otherwise specified with respect to any Securities pursuant
to Section 301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities the office
or agency of the Company in the Borough of Manhattan, The City of New York,
and initially appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series
of Securities, or as so required, at least one exchange rate agent.
<PAGE>
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent with respect to
any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on any Securities of that series, deposit with a Paying Agent a
sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to
pay the principal (and premium or Make-Whole Amount, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or Make-Whole Amount, if any, or
interest and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium or Make-Whole Amount, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium or Make-Whole Amount, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
<PAGE>
Company, in trust for the payment of the principal of (and premium or Make-
Whole Amount, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium or
Make-Whole Amount, if any) or interest has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal of (and premium or Make-Whole Amount, if any) or
interest on any Security, without interest thereon, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Existence. Subject to Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, all material rights (by articles
of incorporation, by-laws and statute) and material franchises; provided,
however, that the Company shall not be required to preserve any such right
or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company.
SECTION 1005. Maintenance of Properties. The Company will cause all
of its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
the Company and its Subsidiaries shall not be prevented from selling or
otherwise disposing of their properties for value in the ordinary course of
business.
SECTION 1006. Insurance. The Company will cause each of its and its
Subsidiaries' insurable properties to be insured against loss or damage in
an amount at least equal to their then full insurable value with insurers
of recognized responsibility.
SECTION 1007. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon it or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
<PAGE>
SECTION 1008. Statement as to Compliance. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture
and, in the event of any noncompliance, specifying such noncompliance and
the nature and status thereof. For purposes of this Section 1008, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1009. Waiver of Certain Covenants. The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 to 1009, inclusive, 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 45 days prior to the giving of the notice of redemption in Section
1104 (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series.
<PAGE>
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301,
to each Holder of Securities to be redeemed, but failure to give such
notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings
for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106,
if any, will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
<PAGE>
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on this Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on
which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, the place or places where such Securities may be
surrendered for conversion, and the date and time when the option to
convert shall expire.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, which
it may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
If any Securities called for redemption are converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and
held in trust for the redemption of such Security shall be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) (together with accrued interest, if any,
to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall, if the same were interest-bearing, cease to bear
<PAGE>
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance
with said notice, together with all coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of coupons for such interest; and provided further that,
except as otherwise provided with respect to Securities convertible into
the Company's Common Stock or Preferred Stock, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date
at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this
Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. If a Global Security is so surrendered, the
Company shall execute and the Trustee shall authenticate and deliver to the
depository, without service charge, a new Global Security in a denomination
equal to and in exchange for the unredeemed portion of the principal of the
Global Security so surrendered.
<PAGE>
ARTICLE TWELVE - SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of any Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series,
(1) deliver Outstanding Securities of such series (other than any
previously called for redemption) together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto
and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, as provided for by
the terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit
have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
<PAGE>
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 on or
prior to the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (or, if so provided by the terms of
the Securities of any series, a percentage of the principal) of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject
to repayment at the option of the Holders thereof will contain an "Option
to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must
receive at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier than
60 days nor later than 30 days prior to the Repayment Date (1) the Security
so providing for such repayment together with the "Option to Elect
Repayment" form on the reverse thereof duly completed by the Holder (or by
the Holder's attorney duly authorized in writing) or (2) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. ("NASD"),
or a commercial bank or trust company in the United States setting forth
the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and
a guarantee that the Security to be repaid, together with the duly
completed form entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifth Business
Day after the date of such telegram, telex, facsimile transmission or
letter; provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security and form
duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
<PAGE>
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid,
must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise
may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the
Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities,
such Securities or the 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 shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be repaid, except to the extent provided below,
shall be void. Upon surrender of any such Security for repayment in
accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal
amount of such Security so to be repaid shall be paid by the Company,
together with accrued interest, if any, 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 shall default in the payment thereof)
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor
as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the
preceding sentence, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
<PAGE>
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge and at the expense of the Company, a
new Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount
equal to and in exchange for the portion of the principal of such Security
so surrendered which is not to be repaid.
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) defeasance of the Securities of or within
a series under Section 1402 or (b) covenant defeasance of the Securities of
or within a series under Section 1403, then the provisions of such
Section or Sections, as the case may be, together with the other provisions
of this Article (with such modifications thereto as may be specified
pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to
such Securities and any coupons appertaining thereto, elect to have
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to
such Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions set forth
in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such Securities
and any coupons appertaining thereto and this Indenture insofar as such
Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more
fully set forth in such Section, payments in respect of the principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due,
(B) the Company's obligations with respect to such Securities under
<PAGE>
Sections 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations
under Sections 1004 to 1009, inclusive, and, if specified pursuant to
Section 301, its obligations under any other covenant contained herein or
in any indenture supplemental hereto, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 to 1009,
inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities
and any coupons appertaining thereto, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section
or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a default or an Event of
Default under Section 501(4) or 501(8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than the due date of any payment of principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Securities and any coupons appertaining thereto, money in an amount, or (3)
a combination thereof, in any case, in an amount, sufficient, without
<PAGE>
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, (i) the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated Maturity of
such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6) and
501(7) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
<PAGE>
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any
coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium or Make-Whole
Amount, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms
of such Security to receive payment in a currency or currency unit other
than that in which the deposit pursuant to Section 1404(a) has been made in
respect of such Security, or (b) a Conversion Event occurs in respect of
the currency or currency unit in which the deposit pursuant to Section
1404(a) has been made, the indebtedness represented by such Security and
any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by converting
(from time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the
currency or currency unit in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable market
exchange rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a
Conversion Event, for such currency or currency unit in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by
law is for the account of the Holders of such Outstanding Securities and
any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other
<PAGE>
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Article.
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting
of Holders of Securities of any series may be called at any time and from
time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for
any purpose specified in Section 1501, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than 20 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 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first publication of the notice of such meeting
within 20 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series,
or (2) a Person appointed by an instrument in writing as proxy for a Holder
or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
<PAGE>
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 the reconvening of any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned for
lack of a quorum, the persons entitled to vote 25% in aggregate principal
amount of the then Outstanding Securities shall constitute a quorum for the
taking of any action set forth in the notice of the original 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.
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 persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities represented at such meeting; provided, however,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
<PAGE>
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1502(b), in which case the Company or the Holders of Securities of
the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting, and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record,
at least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
<PAGE>
inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the fact, setting forth a copy of
the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall
be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the
Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE SIXTEEN - SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. Notwithstanding anything in
this Indenture to the contrary (other than Article Four of this Indenture),
the Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Securities and the payment of any Obligations with
respect to each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
SECTION 1602. Payment Over of Proceeds upon Dissolution, Etc. In the
event of (a) any insolvency or bankruptcy case or Proceeding, or any
receivership, liquidation, reorganization or other similar case or
Proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshaling of assets and
liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as
a "Proceeding")
(1) the holders of Senior Indebtedness shall first be entitled
to receive payment in full of all Obligations due or to become due on
or in respect of all Senior Indebtedness, or provision shall be made
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, before the Holders
of the Securities are entitled to receive any payment or distribution
on account of principal of or premium, if any, or interest on or other
Obligations in respect of the Securities or on account of any
purchase, redemption or other acquisition of Securities by the Company
or any Subsidiary (individually and collectively, a "Securities
Payment"), and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
Capital Stock or securities of the Company as reorganized or
readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment
of which is subordinate, at least to the extent provided in this
Article Sixteen with respect to the Securities, to the payment in
full, without diminution or modification by such plan, of all Senior
Indebtedness), to which the Holders would be entitled except for the
<PAGE>
provisions of this Article Sixteen, shall be paid by the liquidating
trustee or agent or other person making such a payment or
distribution, directly to the holders of Senior Indebtedness) (or
their representative(s) or trustee(s) acting on their behalf), ratably
according to the aggregate amounts remaining unpaid on account of the
principal of or interest on and other amounts due on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 1601, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Capital
Stock or securities of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment, the payment of which is subordinate, at
least to the extent provided in this Article with respect to the
Securities, to the payment in full, without diminution or modification by
such plan, of Senior Indebtedness), before all Senior Indebtedness is paid
in full or payment thereof provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness,
such payment or distribution shall be held in trust for the benefit of, and
be paid over to, the holders of the Senior Indebtedness remaining unpaid
(or their representative(s) or trustee(s) acting on their behalf), ratably
as aforesaid, for application to the payment of such Senior Indebtedness
until such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for
the purposes of this Section 1602 if the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions set forth in
Article Eight.
SECTION 1603. No Payment When Senior Indebtedness in Default.
Anything in this Indenture to the contrary notwithstanding, no payment on
account of principal of or redemption of, interest on or other amounts due
on the Securities, and no redemption, purchase, or other acquisition of the
Securities, shall be made by or on behalf of the Company (i) unless full
payment of amounts then due for principal and interest and of all other
obligations then due on all Senior Indebtedness has been made or duly
provided for pursuant to the terms of the instrument governing such Senior
Indebtedness, (ii) if, at the time of such payment, redemption, purchase or
other acquisition, or immediately after giving effect thereto, there shall
exist under any Senior Indebtedness, or any agreement pursuant to which any
Senior Indebtedness is issued, any default, which default shall not have
been cured or waived and which default shall have resulted in the full
amount of such Senior Indebtedness being declared due and payable or
<PAGE>
(iii) if, at the time of such payment, redemption, purchase or other
acquisition, the Trustee shall have received written notice from the holder
or holders of any Senior Indebtedness or their representative or
representatives (a "Payment Blockage Notice") that there exists under such
Senior Indebtedness, or any agreement pursuant to which such Senior
Indebtedness is issued, any default, which default shall not have been
cured or waived, permitting the holders thereof to declare the full amount
of such Senior Indebtedness due and payable, but only for the period (the
"Payment Blockage Period") commencing on the date of receipt of the Payment
Blockage Notice and ending (unless earlier terminated by notice given to
the Trustee by the Holders of such Senior Indebtedness) on the earlier of
(A) the date on which such event of default shall have been cured or waived
or (B) 180 days from the receipt of the Payment Blockage Notice. Upon
termination of a Payment Blockage Period, payments on account of principal
of or interest on the Securities and redemptions, purchases or other
acquisitions may be made by or on behalf of the Company. Notwithstanding
anything herein to the contrary, (A) only one Payment Blockage Notice may
be given during any period of 360 consecutive days with respect to the same
event of default and any other events of default on the same issue of
Senior Indebtedness existing and known to the person giving such notice at
the time of such notice and (B) no new Payment Blockage Period may be
commenced by the holder or holders of the same issue of Senior Indebtedness
or their representative or representatives during any period of 360
consecutive days unless all events of default which were the object of the
immediately preceding Payment Blockage Notice, and any other event of
default on the same issue of Senior Indebtedness existing and known to the
person giving such notice at the time of such notice, have been cured or
waived.
In the event that, notwithstanding the provisions of this Section
1603, payments are made by or on behalf of the Company in contravention of
the provisions of this Section 1603, such payments shall be held by the
Trustee, any Paying Agent or the Holders, as applicable, in trust for the
benefit of, and shall be paid over to and delivered to, the holders of
Senior Indebtedness or their representative or the trustee under the
indenture or other agreement (if any), pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in accordance with the terms of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1602 would be applicable.
SECTION 1604. Reliance by Senior Indebtedness on Subordination
Provisions. Each Holder of any Security by his acceptance thereof
acknowledges and agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration for each holder
of any Senior Indebtedness, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and
continue to hold, or to continue to hold, such Senior Indebtedness, and
such holder of Senior Indebtedness shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold
or in continuing to hold such Senior Indebtedness.
<PAGE>
SECTION 1605. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all Obligations due or to
become due on or in respect of Senior Indebtedness, or the provision for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to
the provisions of this Article Sixteen to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of
and premium, if any, and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article Sixteen, and no payments over pursuant
to the provisions of this Article Sixteen to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities, be deemed to be a payment or distribution by
the Company to or on account of the Senior Indebtedness.
SECTION 1606. Provisions Solely to Define Relative Rights. The
provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article Sixteen
of the holders of Senior Indebtedness, is intended to rank equally with all
other general obligations of the Company), to pay to the Holders of the
Securities the principal of and premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 1607. Trustee to Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
effectuate, as between the Holders of the Securities and the holders of
Senior Indebtedness, the subordination provided in this Article Sixteen and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding up or liquidation or
reorganization under any applicable bankruptcy law of the Company (whether
in bankruptcy, insolvency or receivership Proceedings or otherwise), the
timely filing of a claim for the unpaid balance of such Holder's Securities
in the form required in such Proceedings and the causing of such claim to
be approved. If the Trustee does not file a claim or proof of debt in the
form required in such Proceedings prior to 30 days before the expiration of
the time to file such claims or proofs, then the holders of Senior
<PAGE>
Indebtedness, jointly, or their representatives shall have the right to
file an appropriate claim for and on behalf of the Holders and to demand,
sue for, collect, receive and receipt for the payments and distributions in
respect of the Securities which are required to be paid or delivered to the
holders of Senior Indebtedness as provided in this Article Sixteen and to
take all such other action in the name of the Holders or otherwise, as such
holder of Senior Indebtedness or representative thereof may determine to be
necessary or appropriate for the enforcement of the provisions of this
Article Sixteen.
SECTION 1608. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by
any act or failure to act, in good faith, by any such holder or any
representative or trustee therefor, or by any non-compliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be otherwise charged
with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article Sixteen or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise
amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior
Indebtedness and settle or compromise Senior Indebtedness (which, to the
extent so settled and compromised, shall be deemed to have been paid in
full for all purposes hereof); (iv) apply any amounts received to any
liability of the Company owing to holders of Senior Indebtedness; and
(v) exercise or refrain from exercising any rights against the Company and
any other Person.
SECTION 1609. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any default or event of default with
respect to any Senior Indebtedness or of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article
Sixteen. Notwithstanding the provisions of this Article Sixteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee in respect of the Securities, unless and
until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any representative or
trustee acting on their behalf; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 612,
shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date
<PAGE>
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of and
premium, if any, or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business
Days prior to such date. Nothing contained in this Article Sixteen or any
other Article of this Indenture or in any of the Securities shall prevent
(a) the Company, at any time except during the pendency of any Proceeding,
or under the conditions described in Section 1603, from making payments at
any time in respect of the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on
account of the Securities, or the retention thereof by any Holder, if the
Trustee did not have notice, as provided in this Section 1609, that such
payment would have been prohibited by the provisions of this Article
Sixteen.
Subject to the provisions of Section 612, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a
representative or trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Sixteen, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1610. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the
Company referred to in this Article Sixteen, the Trustee, subject to the
provisions of Section 612, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which any Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee
for the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1611. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness. Nothing contained in this Article
Sixteen or elsewhere in this Indenture, or in any of the Securities, shall
prevent the application by the Trustee of any moneys which were deposited
with it hereunder, prior to its receipt of written notice of facts which
would prohibit such application, for the purpose of the payment of or on
<PAGE>
account of the principal of or interest on, the Securities unless, prior to
the date on which such application is made by the Trustee, the Trustee
shall be charged with notice under Section 1609 hereof of the facts which
would prohibit the making of such application.
SECTION 1612. Rights of Trustee as Holder of Senior Indebtedness; of
Trustee's Rights. The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article Sixteen with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 606.
SECTION 1613. Article Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in
this Article Sixteen shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article in addition to or in place of the Trustee;
provided, however, that Section 1612 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE SEVENTEEN - CONVERSION OF SECURITIES
SECTION 1701. Applicability of Article; Conversion Privilege and
Price.
Securities of any series which are convertible shall be convertible 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 Seventeen. Subject to and upon compliance with the
provisions of this Article Seventeen, at any time during the period
specified in the Securities, at the option of the Holder thereof, any
Security or any portion of the principal amount thereof which is $1,000 or
an integral multiple of $1,000 may be converted at the principal amount
thereof, or of such portion thereof, into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100 of a share)
of Common Stock of the Company, at the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. In case a
Security or portion thereof is called for redemption, such conversion right
in respect of the Security or portion so called shall expire at the close
of business on the Business Day immediately preceding the Redemption Date,
unless the Company defaults in making the payment due upon redemption, in
which case such conversion right shall terminate on the date such default
is cured.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") of Securities of any
series shall be specified in such Securities. The Conversion Price shall
be adjusted in certain instances as provided in Section 1704.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (4) of Section
1704, the Holder of each Security, upon the conversion thereof pursuant to
this Article Seventeen subsequent to the close of business on the date
<PAGE>
fixed for the determination of stockholders entitled to receive such
distribution and prior to the effectiveness of the Conversion Price
adjustment in respect of such distribution pursuant to paragraph (4) of
Section 1704, shall be entitled to receive for each share of Common Stock
into which such Security is converted, the portion of the evidence of
indebtedness, shares of Capital Stock or assets so distributed applicable
to one share of Common Stock; provided, however, that, at the election of
the Company (whose election shall be evidenced by a Board Resolution filed
with the Trustee) with respect to all Holders so converting, the Company
may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed with the
Trustee). If any conversion of a Security entitled to the benefits
described in the immediately preceding sentence occurs prior to the payment
date for a distribution to holders of Common Stock which the Holder of the
Security so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a Board Resolution filed with the Trustee) to distribute to
such Holder a due bill for the evidences of indebtedness, shares of Capital
Stock or assets to which such Holder is so entitled, provided that such due
bill (i) meets any applicable requirements of the principal national
securities exchange or other market on which the Common Stock is then
traded, and (ii) requires payment or delivery of such evidences of
indebtedness or assets no later than the date of payment or delivery
thereof to holders of Common Stock receiving such distribution.
SECTION 1702. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency maintained by
the Company pursuant to Section 1002, accompanied by written notice to the
Company at such office or agency that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted and shall comply with any
additional requirements set forth in such Security. Securities surrendered
for conversion during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except for Securities the
Maturity of which is prior to such Interest Payment Date) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities being surrendered for conversion
and such interest shall be paid on such Interest Payment Date as provided
in Section 307. Except as provided in the preceding sentence, no payment
or adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on account of any
dividends on the Common Stock issued upon conversion.
The Company's delivery to the Holder of the fixed number of shares of
the Common Stock of the Company (and any cash in lieu of any fractional
share of Common Stock) into which the Security is convertible shall be
deemed to satisfy the Company's obligation to pay the principal amount of
the Security and all accrued interest and original issue discount that has
not previously been paid. The shares of Common Stock of the Company so
<PAGE>
delivered shall be treated as issued first in payment of accrued interest
and original issue discount and then in payment of principal. Thus,
accrued interest and original issue discount shall be treated as paid,
rather than canceled, extinguished or forfeited.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time
the rights of the Holders of such Securities as Holders shall cease, and
the Person or Persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or
holders of such Common Stock at such time. As promptly as practicable on
or after the conversion date, the Company shall issue and shall deliver at
such office or agency a certificate or certificates for the number of full
shares of Common Stock issuable upon conversion, together with payment in
lieu of any fraction of a share, as provided in Section 1703.
In the case of any Security which is converted in part only, as
promptly as practicable on or after the conversion date the Company shall
execute and the Trustee shall authenticate and make available for delivery
to the Holder thereof (or the Depositary in the case of a Global Security),
at the expense of the Company, a new Security or Securities, of authorized
denominations in aggregate principal amount equal to the unconverted
portion of the principal amount of such Security.
SECTION 1703. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares of
Common Stock which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities
(or specified portions thereof) so surrendered. Instead of any fractional
share of Common Stock which would otherwise be issuable upon conversion of
any Security or Securities (or specified portions thereof), the Company
shall pay a cash adjustment (rounded to the nearest cent) in respect of
such fraction in an amount equal to the same fraction of the Closing Price
per share of the Common Stock on the day of conversion (or, if such day is
not a Trading Day, on the Trading Day immediately preceding such day).
SECTION 1704. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment from time to time
as follows:
(1) If the Company pays or makes a dividend or other
distribution (a) on its Common Stock exclusively in Common Stock or (b) on
any other class of Capital Stock of the Company, which dividend or
distribution includes Common Stock of the Company, the Conversion Price in
effect at the opening of business on the day following the date fixed for
the determination of stockholders entitled to receive such dividend or
other distribution (the "Dividend Record Date") shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock of the Company outstanding at
the close of business on the Dividend Record Date and the denominator shall
be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution. Such reduction shall
<PAGE>
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (1), the number of shares of Common Stock of the Company at any
time outstanding shall not include shares held in the treasury of the
Company, but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company shall
not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(2) Subject to paragraph (6) of this Section, if the Company
pays or makes a dividend or other distribution on its Common Stock
consisting exclusively of Short Term Rights (as defined below), or
otherwise issues Short Term Rights to all holders of its Common Stock, the
Conversion Price in effect at the opening of business on the day following
the record date for the determination of holders of Common Stock entitled
to receive such Short Term Rights (the "Rights Record Date") shall be
reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock of the Company
outstanding at the close of business on the Rights Record Date plus the
number of shares of Common Stock of the Company which the aggregate of the
offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price and
the denominator shall be the number of shares of Common Stock of the
Company outstanding at the close of business on the Rights Record Date plus
the number of shares of Common Stock so offered for subscription or
purchase. Such reduction shall become effective immediately after the
opening of business on the day following the Rights Record Date. For the
purposes of this paragraph (2), the number of shares of Common Stock of the
Company at any time outstanding shall not include shares held in the
treasury of the Company, but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock of
the Company. The Company shall not issue any rights, options or warrants
in respect of shares of its Common Stock held in the treasury of the
Company. When used in this Section 1704, the term "Short Term Rights"
shall mean rights, warrants or options entitling the holders thereof (for a
period commencing no earlier than the Rights Record Date and expiring not
more than 45 days after the Rights Record Date) to subscribe for or
purchase shares of Common Stock of the Company at a price per share less
than the current market price per share (determined as provided in
paragraph (7) of this Section 1704) of the Common Stock of the Company on
the Rights Record Date.
(3) In case outstanding shares of Common Stock of the Company
shall be subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day following
the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of
Common Stock of the Company shall be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(4) Subject to the last sentence of this paragraph (4) of this
Section, if the Company, by dividend or otherwise, (a) distributes to all
holders of its Common Stock evidences of its indebtedness, shares of any
<PAGE>
class of Capital Stock of the Company or other assets (other than cash
dividends out of current or retained earnings), or (b) distributes to
substantially all holders of Common Stock rights or warrants to subscribe
for securities (other than Short Term Rights to which paragraph (2) of this
Section 1704 applies), the Conversion Price shall be reduced by multiplying
such Conversion Price by a fraction of which the numerator shall be the
current market price per share (determined as provided in paragraph (7) of
this Section 1704) of the Common Stock of the Company on the Reference Date
(as defined below) less the fair market value (as determined in good faith
by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Trustee), on the Reference
Date, of the portion of the evidences of indebtedness and other assets so
distributed or of such subscription rights or warrants applicable to one
share of Common Stock (collectively, the "Market Value of the
Distribution") and the denominator shall be such current market price per
share of the Common Stock of the Company. Such reduction shall become
effective immediately prior to the opening of business on the day (the
"Reference Date") following the later of (a) the date fixed for the payment
of such distribution and (b) the date 20 days after notice relating to such
distribution is required to be given pursuant to Section 1706(a). If the
Board of Directors determines the fair market value of any distribution for
purposes of this paragraph (4) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in
doing so consider the prices in such market over the same period used in
computing the current market price per share pursuant to paragraph (7) of
this Section 1704. In the event that, with respect to any distribution to
which this paragraph (4) of Section 1704 would otherwise apply, the Market
Value of the Distribution is greater than the current market price per
share of the Common Stock (such distribution being referred to herein as an
"Unadjusted Distribution"), then the adjustment provided by this paragraph
(4) shall not be made and in lieu thereof the provisions of Section 1711
shall apply with respect to such Unadjusted Distribution.
(5) The Company may, but shall not be required to, make such
reductions in the Conversion Price, in addition to those required by
paragraphs (1), (2), (3), and (4) of this Section 1704, as it considers to
be advisable in order that any event treated for Federal income tax
purposes as a dividend of stock or stock rights shall not be taxable to the
recipients. In addition, the Company, from time to time, may decrease the
Conversion Price by any amount and for any reason, temporarily or
otherwise, including situations where the Board of Directors determines
such decrease to be fair and appropriate with respect to transactions in
which holders of Common Stock have the right to participate.
(6) Rights or warrants issued or distributed by the Company to
all holders of its Common Stock entitling the holders thereof to subscribe
for or purchase shares of Common Stock or Preferred Stock, which rights or
warrants (i) are deemed to be transferred with such shares of Common Stock,
(ii) are not exercisable and (iii) are also issued or distributed in
respect of future issuances of Common Stock, in each case in clauses (i)
through (iii) until the occurrence of a specified event or events ("Trigger
Events"), shall for purposes of this Section 1704 not be deemed issued or
distributed until the occurrence of the earliest Trigger Event. Each share
of Common Stock issued upon conversion of Securities pursuant to this
Article Seventeen shall be entitled to receive the appropriate number of
Common Stock purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon conversion shall bear such
<PAGE>
legends, if any[, in each case as provided by and subject to the terms of
the [Stockholders Rights Plan] adopted by the Board of Directors on
______________ (the "Rights Plan") as in effect at the time of such
conversion]. Notwithstanding anything to the contrary in this Article
Seventeen, there shall not be any adjustment to the Conversion Price as a
result of (i) the distribution of separate certificates representing the
Rights; (ii) the occurrence of certain events entitling holders of Rights
to receive, upon exercise thereof, Common Stock or other securities of the
Company or other securities of another corporation; or (iii) the exercise
of such Rights, all in accordance with the Rights Plan. No adjustment in
the Conversion Price need be made for rights to purchase or the sale of
Common Stock pursuant to a Company plan providing for reinvestment of
dividends or interest.
(7) For the purpose of any computation under paragraph (2), (4)
or (5) of this Section 1704, the "current market price" per share of
Common Stock of the Company on any date shall be deemed to be the average
of the daily Closing Prices for the 15 consecutive Trading Days selected by
the Company commencing not more than 30 Trading Days before, and ending not
later than, the date in question.
(8) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1%
in the Conversion Price; provided, however, that any adjustments which by
reason of this paragraph (8) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article Seventeen shall be made to the nearest cent
or to the nearest one-hundredth of a share of Common Stock, as the case may
be.
(9) Anything herein to the contrary notwithstanding, in the
event the Company shall declare any dividend or distribution requiring an
adjustment in the Conversion Price hereunder and shall, thereafter and
before the payment of such dividend or distribution to stockholders,
legally abandon its plan to pay such dividend or distribution, the
Conversion Price then in effect hereunder, if changed to reflect such
dividend or distribution, shall upon the legal abandonment of such plan be
changed to the Conversion Price which would have been in effect at the time
of such abandonment (after giving effect to all other adjustments not so
legally abandoned pursuant to the provisions of this Article Seventeen) had
such dividend or distribution never been declared.
(10) Notwithstanding any other provision of this Section 1704, no
adjustment to the Conversion Price shall reduce the Conversion Price below
the then par value per share of the Common Stock of the Company, and any
such purported adjustment shall instead reduce the Conversion Price to such
par value. Notwithstanding the foregoing sentence, the Company hereby
covenants that it will from time to time take all such action as may be
required to assure that the par value per share of the Common Stock is at
all times equal to or less than the Conversion Price.
(11) In the event that this Article Seventeen requires
adjustments to the Conversion Price under more than one of paragraphs (1),
(2), (3) or (4) of this Section 1704, and the record or effective dates for
the transaction giving rise to such adjustments shall occur on the same
date, then such adjustments shall be made by applying (to the extent they
are applicable), first, the provisions of paragraph (3) of this Section
<PAGE>
1704, second, the provisions of paragraph (1) of this Section 1704, third,
the provisions of paragraph (4) of this Section 1704 and, fourth, the
provisions of paragraph (2) of this Section 1704. Anything herein to the
contrary notwithstanding, no single event shall require or result in
duplicative adjustments in the Conversion Price pursuant to this Section
1704. After an adjustment to the Conversion Price under this Article
Seventeen, any subsequent event requiring an adjustment under this Article
Seventeen shall cause an adjustment to the Conversion Price as so adjusted.
If, after an adjustment, a Holder of a Security upon conversion of such
Security receives shares of two or more classes of Capital Stock of the
Company, the Conversion Price shall thereafter be subject to adjustment
upon the occurrence of an action taken with respect to any such class of
Capital Stock as is contemplated by this Article Seventeen with respect to
the Common Stock in this Article Seventeen.
SECTION 1705. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price in
accordance with Section 1704 or Section 1711 and shall prepare an Officer's
Certificate setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed (with a copy to the Trustee) at each
office or agency maintained for the purpose of conversion of any Securities
pursuant to Section 1002; and
(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such notice
shall be mailed by the Company to all Holders at their last addresses as
they shall appear in the Security Register.
SECTION 1706. Notice of Certain Corporate Action.
In case:
(1) the Company shall take any action that would require a
Conversion Price adjustment pursuant to Section 1704 or Section 1711; or
(2) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party, or the sale, transfer or lease of all or substantially
all of the assets of the Company and for which approval of any stockholders
of the Company is required; or
(3) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company,
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section
1002, and shall cause to be mailed to all Holders at their last addresses
as they shall appear in the Security Register, at least 10 days prior to
the applicable record, effective or expiration date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the
purpose of any dividend, distribution or granting of rights, warrants or
<PAGE>
options, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective,
and, if applicable, the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
SECTION 1707. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, a number of shares of
Common Stock for the conversion of all outstanding Securities of any series
which is convertible into Common Stock.
SECTION 1708. Taxes on Conversion.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue
or delivery shall be made unless and until the Person requesting such issue
has paid to the Company the amount of any such tax, or has established to
the satisfaction of the Company that such tax has been paid.
SECTION 1709. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be duly and validly
issued, fully paid and nonassessable, free of preemptive or any similar
rights, and, except as provided in Section 1708, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
The Company will endeavor promptly to comply with all Federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or
in the over-the-counter market or such other market on which the Common
Stock is then listed or quoted.
SECTION 1710. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1711. Provisions in Case of Consolidation, Merger or Sale of
Assets; Special Distributions.
If any of the following shall occur, namely: (i) any reclassification
or change of outstanding shares of Common Stock issuable upon conversion of
Securities (other than a change in par value, or from par value to no par
<PAGE>
value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation or merger to which the Company is a
party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change
(other than a change in name, or par value, or from par value to no par
value, or from no par value to par value or as a result of a subdivision or
combination) in, outstanding shares of Common Stock or (iii) any sale or
conveyance of all or substantially all of the property or business of the
Company as an entirety, then the Person formed by such consolidation or
resulting from such merger or which acquires such properties or assets, as
the case may be, shall as a condition precedent to such transaction execute
and deliver to the Trustee a supplemental indenture providing that the
Holder of each Security then outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in
Section 1701, to convert such Security only into the kind and amount of
securities, cash and other property receivable, if any, upon such
consolidation, merger, sale, transfer or lease by a holder of the number of
shares of Common Stock of the Company into which such Security might have
been converted immediately prior to such consolidation, merger, sale,
transfer or lease; provided that the kind and amount of securities, cash
and other property so receivable shall be determined on the basis of the
following assumptions. The holder of Common Stock referred to in the
foregoing sentence:
(1) is not (a) a Person with which the Company consolidated, (b) a
Person into which the Company merged or which merged into the
Company, or (c) a Person to which such sale, transfer or lease
was made (any Person described in the foregoing clauses (a),
(b), or (c), hereinafter referred to as a "Constituent Person"),
or (d) an Affiliate of a Constituent Person; and
(2) failed to exercise his rights of election, if any, as to the
kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale, transfer or lease provided
that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale transfer or
lease is not the same for each share of Common Stock of the
Company in respect of which such rights of election shall not
have been exercised, then for the purpose of this Section 1711
the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale, transfer or
lease shall be deemed to be the kind and amount so receivable per
share by a plurality of such shares of Common Stock).
Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture,
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Seventeen. If, in the case of any such
consolidation, merger, sale transfer or lease the stock or other securities
and property (including cash) receivable thereupon by a holder of Common
Stock includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale, transfer or lease then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing. The above
<PAGE>
provisions of this Section 1711 shall similarly apply to successive
consolidations, mergers, sales, transfers or leases.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1711, the Company shall promptly file with the
Trustee an Officers' Certificate briefly stating the reasons therefor, the
kind or amount of shares of stock or securities or property (including
cash) receivable by Holders of the Securities upon the conversion of their
Securities after any such reclassification, change, consolidation, merger,
sale, transfer or lease and any adjustment to be made with respect thereto.
If the Company makes a distribution to all holders of its Common Stock
that constitutes an Unadjusted Distribution pursuant to the last sentence
of paragraph (4) of Section 1704, then, from and after the record date for
determining the holders of Common Stock entitled to receive such
distribution (the "Distribution Record Date"), a Holder of a Security who
converts such Security in accordance with the provisions of this Indenture
shall, upon conversion, be entitled to receive, in addition to the shares
of Common Stock into which the Security is convertible, the kind and amount
of evidences of indebtedness, shares of Capital Stock, or other assets or
subscription rights or warrants, as the case may be, comprising the
distribution that such Holder would have received if such Holder had
converted the Security immediately prior to the Distribution Record Date.
SECTION 1712. Trustee Adjustment Disclaimer; Company Determination
Final.
The Trustee has no duty to determine when an adjustment under this
Article Seventeen should be made, how it should be made or what it should
be. The Trustee has no duty to determine whether a supplemental indenture
under Section 1711 need be entered into or whether any provisions of any
supplemental indenture are correct. The Trustee shall not be accountable
for and makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities. The Trustee
shall not be responsible for the Company's failure to comply with this
Article Seventeen. Any determination that the Company or the Board of
Directors must make pursuant to this Article Seventeen is conclusive,
absent manifest error.
SECTION 1713. When No Adjustment Required.
(a) Except as expressly set forth in Section 1704, no adjustment
in the Conversion Price shall be made because the Company issues, in
exchange for cash, property or services, shares of its Common Stock, or any
securities convertible into or exchangeable for shares of its Common Stock,
or securities (including warrants, rights and options) carrying the right
to subscribe for or purchase shares of its Common Stock or such convertible
or exchangeable securities.
(b) Notwithstanding anything herein to the contrary, no
adjustment in the Conversion Price shall be made pursuant to Section 1704
in respect of any dividend or distribution if the Holders may participate
therein (on a basis to be determined in good faith by the Board of
Directors) and receive the same consideration they would have received if
they had converted the Securities immediately prior to the record date with
respect to such dividend or distribution.
<PAGE>
SECTION 1714. Equivalent Adjustments.
In the event that, as a result of an adjustment made pursuant to
Section 1704 above, the holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock of
the Company other than shares of its Common Stock, thereafter the
Conversion Price of such other shares so receivable upon conversion of any
Securities shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect
to Common Stock contained in this Article Seventeen.
<PAGE>
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc.,
General Partner
By:
Attest:
Title:
[ ],
as Trustee
By:
Title:
Attest:
Title:
<PAGE>
ACKNOWLEDGMENT
STATE OF [____________________])
) ss:
COUNTY OF )
On the [_______________________] 1996, before me personally came
[_________________], to me known, who, being by me duly sworn, did depose
and say that he is the [__________________] of SOVRAN HOLDINGS, INC., one
of the parties described in and which executed the foregoing instrument,
and that he signed his name thereto by authority of the Board of Directors.
[Notarial Seal]
________________________________
Notary Public
Commission Expires
STATE OF [________________])
) ss:
COUNTY OF )
On the [____________________________] 1996, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he/she is a ______________ of [ ], one of the
parties described in and which executed the foregoing instrument, and that
he/she signed his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
________________________________
Notary Public
Commission Expires
<PAGE>
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository
Trust Company ("DTC") or a nominee of DTC, this Security is a Global
Security and the following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to
the issuer or its agent for registration of transfer, exchange or payment,
and such Security issued is registered in the name of CEDE & CO., or such
other name as requested by an authorized representative of DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO., has an
interest herein.
Unless and until this Security is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred
except as a whole by DTC to a nominee thereof or by a nominee thereof to
DTC or another nominee of DTC or by DTC or any such nominee to a successor
of DTC or a nominee of such successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR
PURPOSES OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE
CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ___% OF ITS
PRINCIPAL AMOUNT, THE ISSUE DATE IS _____________, 19__ [AND] THE YIELD TO
MATURITY IS _____%. [THE METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF __________, 19__
TO _________, 19__, IS ___% OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
SOVRAN ACQUISITION LIMITED PARTNERSHIP
[Designation of Series]
No. _______ $_______
SOVRAN ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership
(herein referred to as the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ______________________________ or
registered assigns the principal sum of _______ Dollars on
_____________________ (the "Stated Maturity Date") [or insert date fixed
for earlier redemption (the "Redemption Date," and together with the Stated
Maturity Date with respect to principal repayable on such date, the
"Maturity Date.")]
<PAGE>
[If the Security is to bear interest prior to Maturity, insert -- and to
pay interest thereon from ______________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-
annually on __________ and _________ in each year (each, an "Interest
Payment Date"), commencing __________, at the rate of __% per annum, until
the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Holder in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which
shall be the ________ or ______ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date [at the office or
agency of the Company maintained for such purpose; provided, however, that
such interest may be paid, at the Company's option, by mailing a check to
such Holder at its registered address or by transfer of funds to an account
maintained by such Holder within the United States]. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Holder in
whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Interest will be computed on the basis of a
360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
the [Stated] Maturity Date and in such case the overdue principal of this
Security shall bear interest at the rate of ___% per annum (to the extent
that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment
of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the
rate of ___% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium or Make-Whole Amount, if any, and, if the Redemption
Date is not an Interest Payment Date, interest on this Security payable on
the Redemption Date] will be paid against presentation of this Security at
the office or agency of the Company maintained for that purpose in
___________________, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will
include interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid or duly provided
<PAGE>
for (or from and including ____________, if no interest has been paid on
this Security) to but excluding such Interest Payment Date or the [Stated]
Maturity Date [or Redemption Date, as the case may be.] If any Interest
Payment Date or the [Stated] Maturity Date or [Redemption Date] falls on a
day that is not a Business Day, as defined below, principal, premium or
Make-Whole Amount, if any, and/or interest payable with respect to such
Interest Payment Date or [Stated] Maturity Date [or Redemption Date, as the
case may be,] will be paid on the next succeeding Business Day with the
same force and effect as if it were paid on the date such payment was due,
and no interest shall accrue on the amount so payable for the period from
and after such Interest Payment Date or [Stated] Maturity Date [or
Redemption Date, as the case may be.] "Business Day" means any day, other
than a Saturday or Sunday, on which banks in __________________ are not
required or authorized by law or executive order to close.
[If this Security is a Global Security, insert -- All payments of
principal, premium or Make-Whole Amount, if any, and interest in respect of
this Security will be made by the Company in immediately available funds.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature of one of its authorized signatories, this
Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated:__________________________ SOVRAN ACQUISITION LIMITED PARTNERSHIP
By:___________________________________
Attest:
________________________________
Secretary
<PAGE>
[Reverse of Security]
SOVRAN ACQUISITION LIMITED PARTNERSHIP
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of _____________, 199__ (herein
called the "Indenture") between the Company and _________________, as
Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture with respect to the series of which this
Security is a part), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security
is one of the duly authorized series of Securities designated on the face
hereof (collectively, the "Securities"), [if applicable, insert -- and the
aggregate principal amount of the Securities to be issued under such series
is limited to $______ (except for Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of other Securities).]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the
Indenture.
[If applicable, insert -- The Securities may not be redeemed prior to the
Stated Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [(1) (If
applicable, insert on _________ in any year commencing with the year ____
and ending with the year ____ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount,
and (2)] [If applicable, insert -- at any time [on or after ___________],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month
period beginning _______ of the years indicated at the Redemption Prices
indicated below.
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or
more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
<PAGE>
[If applicable, insert -- The Securities are subject to redemption (1) on
in any year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2)
at any time [on or after _______], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning ________ of the years indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to ____% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to _______, redeem any Securities as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities provides
the redemption on _______ in each year, beginning with the year ____ and
ending with the year ____, of [not less than] $_______] [("mandatory
sinking fund") and not more than $_______] aggregate principal amount of
the Securities. [The Securities acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to
be made in the [describe order] order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the Redemption Date, all as
provided in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
[If applicable, insert conversion provisions set forth in any Board
Resolution or indenture supplemental to the Indenture.]
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 under the Indenture
at any time by the Company and the Trustee with the consent of the Holders
<PAGE>
of not less than a majority of the aggregate principal amount of all
Securities issued under the Indenture at the time Outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of
not less than a majority of the aggregate principal amount of the
Outstanding Securities, on behalf of the Holders of all such Securities, to
waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less
than a majority of the aggregate principal amount, in certain instances, of
the Outstanding Securities of any series to waive, on behalf of all of the
Holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and other Securities issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium or
Make-Whole Amount, if any) and interest on this Security at the times,
places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, the transfer of this Security is registrable in the
Security Register of the Company upon surrender of this Security for
registration of transfer at the office or agency of the Company in any
place where the principal of (and premium or Make-Whole Amount, if any) and
interest on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, this Security is exchangeable for a like aggregate
principal amount of Securities of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
This Security is subordinated to the prior payment in full in cash of
Senior Indebtedness to the extent set forth in Article Sixteen of the
Indenture.
The Securities of this series are issuable only in registered form [without
coupons] in denominations of $_______ and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith,
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as
<PAGE>
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium or
Make-Whole Amount, if any, or the interest on this Security, or for any
claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture or any indenture supplemental thereto, against any
past, present or future stockholder, employee, officer or director, as
such, of the Company or of any successor, either directly or through the
Company or any successor, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of [the State of New York] applicable to
agreements made and to be performed entirely in such State.
<PAGE>
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you
may advise TriNet Corporate Realty Trust, Inc. or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale
during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner
is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), this is
to further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that this certification applies as of such date.
<PAGE>
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: ________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the Exchange
Date, as applicable]
[Name of Person Making Certification]
____________________________________
(Authorized Signature)
Name:
Title:
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member
Organizations") substantially in the form attached hereto, as of the date
hereof, [U.S.$] principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise TriNet
Corporate Realty Trust, Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "Possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
<PAGE>
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: _______ ____
[To be dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System [CEDEL S.A.]
By:______________________________________________
<PAGE>
EXHIBIT 5.1
PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
3400 MARINE MIDLAND CENTER
BUFFALO, NEW YORK 14203
(716) 847-8400
April 27, 1998
Sovran Self Storage, Inc.
Sovran Acquisition Limited Partnership
5166 Main Street
Williamsville, New York 14221
Re: Legality of Securities to be Registered Under
Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Sovran
Self Storage, Inc., a Maryland corporation (the "Company") and Sovran
Acquisition Limited Partnership, a Delaware limited partnership (the
"Operating Partnership") in connection with the Company and the Operating
Partnership's registration statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to an
indeterminate amount of (i) Preferred Stock and Common Stock (as such terms
are defined in the Registration Statement) authorized for issuance by the
Company under the Company's Amended and Restated Articles of Incorporation
(the "Articles of Incorporation"), with an aggregate public offering price
of up to $100,000,000 and (ii) Debt Securities (as such term is defined in
the Registration Statement) for issuance by the Operating Partnership, with
an aggregate public offering price of up to $150,000,000 (such securities
being referred to collectively as the "Securities"). The Registration
Statement provides that the Securities may be offered separately or
together, in separate series, in amounts, at prices and on terms to be set
forth in one or more prospectus supplements (each a "Prospectus
Supplement") to the Prospectus contained in the Registration Statement.
In connection with rendering this opinion, we have examined
the Company's Articles of Incorporation, as amended to the date hereof and
on file with the Maryland State Department of Assessments and Taxation; the
By-laws of the Company; the Agreement of Limited Partnership of the
Operating Partnership, as amended; the Certificate of Incorporation and
By-laws of the general partner of the Operating Partnership (the "General
Partner"); such records of corporate proceedings of the Company and the
General Partner as we deem appropriate for the purposes of this opinion;
and the Registration Statement and the exhibits thereto.
Based upon the foregoing, we are of the opinion that,
(1) With respect to the Preferred Stock and Common Stock,
when specifically authorized for issuance by the Company's Board of
Directors or an authorized committee thereof (the "Company Authorizing
<PAGE>
Resolution") and when issued as described in the Registration Statement and
a Prospectus Supplement that is consistent with the Company Authorizing
Resolution, and upon receipt by the Company of the consideration provided
for in the Company Authorizing Resolution (which consideration is not less
than the $.01 par value per share in the case of Common Stock or Preferred
Stock), the Securities will be legally issued, fully paid and
nonassessable.
(2) With respect to the Debt Securities, once specifically
authorized for issuance by the General Partner's Board of Directors or an
authorized committee thereof (the "Operating Partnership Authorizing
Resolution") and when issued as described in the Registration Statement
with a Prospectus Supplement that is consistent with the Operating
Partnership Authorizing Resolution, and upon receipt by the Operating
Partnership of the consideration provided for in the Operating Partnership
Authorizing Resolution, the Debt Securities will be legally issued, fully
paid and nonassessable and binding obligations of the Operating
Partnership.
The foregoing assumes that all requisite steps will be taken
to comply with the requirements of the Securities Act and applicable
requirements of state laws regulating the offer and sale of securities.
We hereby consent to being named as counsel to the Company in
the Registration Statement, to the references therein to our firm under the
caption "Legal Matters" and to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
<PAGE>
EXHIBIT 8.1
PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
3400 MARINE MIDLAND CENTER
BUFFALO, NEW YORK 14203
(716) 847-8400
April 27, 1998
Sovran Self Storage, Inc.
5166 Main Street
Williamsville, New York 14221
Re: Certain Federal Income Tax Matters
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as counsel to
Sovran Self Storage, Inc. (the "Company") in connection with the Company's
registration statement on Form S-3 (the "Registration Statement") filed by
the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to an indeterminate amount of
Preferred Stock and Common Stock (as such terms are defined in the
Registration Statement) authorized for issuance under the Company's Amended
and Restated Articles of Incorporation and with an aggregate public
offering price of up to $100,000,000. This opinion relates to the Company's
qualification for federal income tax purposes as a real estate investment
trust ("REIT") under the Internal Revenue Code of 1986, as amended (the
"Code").
In rendering the following opinion, we have examined the Amended
and Restated Articles of Incorporation and Bylaws of the Company, and such
other records, certificates and documents as we have deemed necessary or
appropriate for purposes of rendering the opinions set forth herein.
We have reviewed the Registration Statement and the descriptions set forth
therein of the Company and its investments and activities. We have relied
upon the representations of the Company and its affiliates and certain
officers thereof (including, without limitation, representations contained
in a representation letter dated as of this date) regarding the manner in
which the Company has been and will continue to be owned and operated. We
have neither independently investigated nor verified such representations,
and we assume that such representations are true, correct and complete and
that all representations made "to the best of the knowledge and belief" of
any person(s) or party(ies) are and will be true, correct and complete as
if made without such qualification. We assume that the Company has been and
will be operated in accordance with applicable laws and the terms and
conditions of applicable documents, and that the descriptions of the
Company and its investments, and the proposed investments, activities,
operations and governance of the Company set forth in the Registration
Statement continue to be true. In addition, we have relied on certain
additional facts and assumptions described below.
In rendering the opinions set forth herein, we have assumed (i)
the genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the
conformity of final documents to all documents submitted to us as drafts,
<PAGE>
(v) the authority and capacity of the individual or individuals who
executed any such documents on behalf of any person, (vi) the accuracy and
completeness of all records made available to us, an (vii) the factual
accuracy of all representations, warranties and other statements made by
all parties. We have also assumed, without investigation, that all
documents, certificates, warranties and covenants on which we have relied
in rendering the opinion set forth below and that were given or dated
earlier than the date of this letter continue to remain accurate, insofar
as relevant to the opinion set forth herein, from such earlier date through
and including the date of this letter.
The discussion and conclusions set forth below are based upon the
Code, the Income Tax Regulations and Procedure and Administration
Regulations promulgated thereunder and existing administrative and judicial
interpretations thereof, all of which are subject to change. No assurance
can therefore be given that the federal income tax consequences described
below will not be altered in the future.
Based upon and subject to the foregoing, and provided that the
Company continues to meet the applicable asset composition, source of
income, shareholder diversification, distribution, recordkeeping and other
requirements of the Code necessary for a corporation to qualify as a REIT,
we are of the opinion that:
1. Commencing with the Company's first taxable year ended December
31, 1995, the Company has been organized in conformity with the
requirements for qualification as a "real estate investment
trust" under the Code, and its method of operation, as described
in the representations referred to above, will enable it to
continue to meet the requirements for qualification and taxation
as a "real estate investment trust" under the Code.
2. The Statements in the Registration Statement set forth under the
caption "Certain Federal Income Tax Considerations" to the extent
such information constitutes matters of law, summaries of legal
matters, or legal conclusions, have been reviewed by us and are
accurate in all material respects.
We express no opinion with respect to the transactions described
in the Registration Statement other than those expressly set forth herein.
You should recognize that our opinion is not binding on the IRS and that
IRS may disagree with the opinion contained herein. Although we believe
that our opinion will be sustained if challenged, there can be no assurance
that this will be the case. Except as specifically discussed above, the
opinion expressed herein is based upon the law as it currently exists.
Consequently, future changes in the law may cause the federal income tax
treatment of the transactions described herein to be materially and
adversely different from that described above.
We consent to being named as Counsel to the Company in the
Registration Statement, to the references in the Registration Statement to
our firm and to the inclusion of a copy of this opinion letter as an
exhibit to the Registration Statement.
Very truly yours,
PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
<PAGE>
Exhibit 12.1
Sovran Acquisition Limited Partnership
Ratio of Earnings to Fixed Charges
June 26, 1995
Year ended December 31, to
1997 1996 December 31, 1995
Earnings:
Net income 23,119 15,659 6,744
Fixed charges 2,743 2,386 323
______ ______ _____
Earnings(1) 25,862 18,045 7,067
Fixed charges:
Interest expense 2,166 1,924 131
amortization financing fees 577 462 192
______ ______ _____
Fixed charges(2) 2,743 2,386 323
Ratio of earnings to
fixed charges(1)/(2) 9.43 7.56 21.88
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the captions "Experts" in the
Registration Statement (Form S-3, No. ) and related Prospectus
of Sovran Self Storage, Inc. ("SSS") and Sovran Acquisition Limited
Partnership ("SALP") for the registration of $100,000,000 of SSS Preferred
or Common Stock and $150,000,000 of SALP Debt Securities and to the
incorporation by reference therein of our report dated January 29, 1998
(except for Notes 5 and 14 for which the date is March 24, 1998), with
respect to the consolidated financial statements of Sovran Self Storage,
Inc. incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1997, and our report on the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
We also consent to the incorporation by reference of our report dated
April 9, 1998 with respect to the Historical Summaries of Combined Gross
Revenue and Direct Operating Expenses included in its Current Report on
Form 8-K/A dated April 16, 1998, filed with the Securities and Exchange
Commission.
Lastly, we consent to the incorporation by reference of our report dated
April 16, 1998, with respect to the financial statements of SALP included
in its General Form for Registration of Securities (Form 10) dated
April 22, 1998.
ERNST & YOUNG LLP
Buffalo, New York
April 24, 1998
<PAGE>
EXHIBIT 25.1
Conformed Copy
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
_____________________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
_____________________
Marine Midland Bank
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Charles E. Bauer
Vice President
Marine Midland Bank
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-1792
(Name, address and telephone number of agent for service)
Sovran Acquisition Limited Partnership
(Exact name of obligor as specified in its charter)
Delaware 16-1481551
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5116 Main Street
Williamsville, New York 14211
(716) 631-1850 (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None
<PAGE>
Item 16. List of Exhibits.
Exhibit
T1A(i) * - Copy of the Organization
Certificate of Marine Midland Bank.
T1A(ii) * - Certificate of the State of New
York Banking Department dated
December 31, 1993 as to the
authority of Marine Midland Bank to
commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of
Marine Midland Bank as adopted on
January 20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland Bank
required by Section 321(b) of the
Trust Indenture Act of 1939.
T1A(vii) - Copy of the latest report of
condition of the trustee (December
31, 1997), published pursuant to
law or the requirement of its
supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
* Exhibits previously filed with the Securities and Exchange
Commission with Registration No. 33-53693 and incorporated herein
by reference thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Marine Midland Bank, a banking corporation and trust company
organized under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York and State of New
York on the 27th day of April, 1998.
MARINE MIDLAND BANK
By: /s/ Robert A. Conrad
Robert A. Conrad
Vice President
<PAGE>
Exhibit T1A (vii)
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Federal Financial Institutions Examination Council Expires March 31, 2000
___________________________________________________________________________
Please refer to page i, [1]
Table of Contents, for
the required disclosure
of estimated burden.
___________________________________________________________________________
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices-FFIEC 031
Report at the close of business December 31, 1997
(971231)
(RCRI 9999)
This report is required by law; 12 U.S.C. Section 324 (State member banks);
12 U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section 161
(National banks).
<PAGE>
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than
two directors (trustees) for State nonmember banks and three directors for
State member and National Banks.
I, Gerald A. Ronning, Executive VP & Controller
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and
Income (including the supporting schedules) have been prepared in
conformance with the instructions issued by the appropriate Federal
regulatory authority and are true to the best of my knowledge and believe.
/s/ Gerald A. Ronning
Signature of Officer Authorized to Sign Report
1/26/98
Date of Signature
Submission of Reports
Each Bank must prepare its Reports of Condition and Income either:
(a) in automated format then file the computer data file directly with the
banking agencies' collection agent, Electronic Data System Corporation
(EDS), by modem or computer diskette; or
FDIC Certificate Number [0][0][5][8][9]
(RCRI 9030)
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that
it has been examined by us and to the best of our knowledge and belief has
been prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true and correct.
/s/ Malcolm Burnett
Director (Trustee)
/s/ Bernard J. Kennedy
Director (Trustee)
/s/ Sal H. Alfiero
Director (Trustee)
(b) in hard-copy (paper) form and arrange for another party to convert the
paper report to automated for. That party (if other than EDS) must
transmit the bank's computer data file to EDS
<PAGE>
To fulfill the signature and attestation requirement for the Reports of
Condition and Income for this report date, attach this signature page to
the hard-copy of the completed report that the bank places in its files.
<PAGE>
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business
December 31, 1997
ASSETS
Thousands
of dollars
Cash and balances due from depository
institutions:
Noninterest-bearing balances
currency and coin.................................... $ 928,754
Interest-bearing balances ........................... 2,571,410
Held-to-maturity securities.......................... 0
Available-for-sale securities........................ 3,968,837
Federal funds sold and securities purchased
under agreements to resell........................... 497,992
Loans and lease financing receivables:
Loans and leases net of unearned
income............................... 21,550,115
LESS: Allowance for loan and lease
losses............................... 407,355
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned
income, allowance, and reserve....................... 21,142,760
Trading assets....................................... 979,454
Premises and fixed assets (including
capitalized leases).................................. 225,646
Other real estate owned................................. 8,092
Investments in unconsolidated
subsidiaries and associated companies................... 0
Customers' liability to this bank on
acceptances outstanding................................. 24,795
Intangible assets....................................... 479,713
Other assets............................................ 488,168
Total assets............................................ 31,315,621
LIABILITIES
Deposits:
In domestic offices.................................. 20,072,724
Noninterest-bearing.................. 4,090,858
Interest-bearing..................... 15,981,866
<PAGE>
In foreign offices, Edge, and Agreement
subsidiaries, and IBFs.................................. 3,834,827
Noninterest-bearing.................. 0
Interest-bearing..................... 3,834,827
Federal funds purchased and securities sold
under agreements to repurchase....................... 2,007,482
Demand notes issued to the U.S. Treasury 192,186
Trading Liabilities..................................... 215,748
Other borrowed money:
With a remaining maturity of one year
or less.............................................. 1,402,449
With a remaining maturity of more than
one year through three years......................... 63,601
With a remaining maturity of more than
three years.......................................... 61,707
Bank's liability on acceptances
executed and outstanding................................ 24,795
Subordinated notes and debentures....................... 497,774
Other liabilities....................................... 719,423
Total liabilities....................................... 29,092,716
EQUITY CAPITAL
Perpetual preferred stock and related
surplus................................................. 0
Common Stock............................................ 205,000
Surplus................................................. 1,984,326
Undivided profits and capital reserves.................. 8,678
Net unrealized holding gains (losses)
on available-for-sale securities........................ 24,901
Cumulative foreign currency translation
adjustments............................................. 0
Total equity capital.................................... 2,222,905
Total liabilities, limited-life
preferred stock, and equity capital..................... 31,315,621
<PAGE>
