EXHIBIT 4.3
RECKSON OPERATING PARTNERSHIP, L.P.
OFFICERS' CERTIFICATE
Pursuant to Sections 301 and 303 of the Indenture among Reckson
Operating Partnership, L.P., as issuer of Securities (the "Operating
Partnership"), Reckson Associates Realty Corp. (the "Company"), as guarantor
of certain Securities, and The Bank of New York, as trustee, dated as of March
26, 1999 (together with this Officers' Certificate, the "Indenture"), I, Jason
M. Barnett, Executive Vice President, General Counsel and Secretary of the
Company, the general partner of the Operating Partnership, and I, Michael
Maturo, Executive Vice President, Chief Financial Officer and Treasurer of the
Company, do hereby certify as follows:
Article I. Authorization. The establishment of a series of Securities
of the Company has been approved and authorized pursuant to authority granted
by resolutions duly adopted by the Board of Directors of the Company (the
"Board Resolutions").
Article II. Compliance with Conditions Precedent. All covenants and
conditions precedent provided for in the Indenture relating to the
establishment of a series of Securities have been complied with.
Article III. Definitions. Capitalized terms used herein and not
defined herein have the meanings ascribed to such terms in the Indenture or,
if not defined therein, in the form of Debenture attached hereto as Exhibit A:
"Acquirer Common Stock" mean the class of common stock (or depositary
receipts or other certificates representing common equity interests) of the
acquirer or other entity referred to in the definition of "Public Acquirer
Change in Control" that is traded on a national securities exchange or quoted
on NASDAQ or another established over-the-counter trading market in the United
States or which will be so traded or quoted when issued or exchanged in
connection with a Public Acquirer Change in Control.
"Additional Debentures" has the meaning provided in Section 4.02
hereof.
"Applicable Exchange Period" means, with respect to an exchange of
Debentures, the 10 consecutive Trading Day period commencing on the third
Trading Day following the date the Debentures are tendered for exchange.
"Average Price" means, with respect to an exchange of Debentures, an
amount equal to the average of the Closing Sale Prices of Company Common
Shares for each Trading Day in the Applicable Exchange Period.
"Change in Control" means the occurrence at any time any of any of
the following events: (1) consummation of any transaction or event (whether by
means of a share exchange or tender offer applicable to Company Common Shares,
a liquidation, consolidation, recapitalization, reclassification, combination
or merger of the Company or a sale, lease or other transfer of all or
substantially all of the consolidated assets of the Company) or a series of
related
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transactions or events pursuant to which all of the outstanding Company Common
Shares are exchanged for, converted into or constitute solely the right to
receive, cash, securities or other property more than 10% of which consists of
cash, securities or other property that are not, or upon issuance will not be,
traded on a U.S. national securities exchange or quoted on the NASDAQ; (2) any
"person" or "group" (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable), other than the Company,
the Operating Partnership or any majority owned subsidiary of the Company or
the Operating Partnership or any employee benefit plan of the Company, the
Operating Partnership or such subsidiary, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
more than 50% of the total voting power in the aggregate of all classes of
capital stock of the Company then outstanding entitled to vote generally in
elections of directors; (3) during any period of 12 consecutive months after
the date of original issuance of the Debentures (for so long as the Company is
the general partner of the Operating Partnership immediately prior to such
transaction or series of related transactions), persons who at the beginning
of such 12-month period constituted the Board of Directors of the Company
(together with any new persons whose election was approved by a vote of a
majority of the persons then still comprising the Board of Directors of the
Company who were either members of the Board of Directors of the Company at
the beginning of such period or whose election, designation or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company; or (4) the Company ceases
to be the general partner of the Operating Partnership or ceases to control
the Operating Partnership; provided, however, that the pro rata distribution
by the Company to its shareholders of shares of its capital stock or shares of
any of the Company's other direct or indirect subsidiaries, will not, in and
of itself, constitute a Change in Control for purposes of this definition.
Notwithstanding the foregoing, even if any of the events specified in the
preceding clauses (1) through (4) have occurred, except as specified in clause
(x), a Change in Control will not be deemed to have occurred if either: (x)
the Closing Sale Price per Company Common Share for any five Trading Days
within the period of 10 consecutive Trading Days ending immediately after the
later of the Change in Control or the public announcement of the Change in
Control, in the case of a Change in Control relating to an acquisition of
capital stock, or the period of 10 consecutive Trading Days ending immediately
after the Change in Control, in the case of a Change in Control relating to a
merger, consolidation or asset sale, equals or exceeds 105% of the Exchange
Price of the Debentures in effect on each of those Trading Days; provided,
however, that the exception to the definition of "Change in Control" specified
in this clause (x) shall not apply in the context of a Change in Control or
Public Acquirer Change in Control for purposes of Section 4.10; or (y) at
least 90% of the consideration (excluding cash payments for fractional shares
and cash payments made pursuant to dissenters' appraisal rights) in a merger,
consolidation or other transaction otherwise constituting a Change in Control
consists of shares of common stock (or depositary receipts or other
certificates representing common equity interests) traded on a U.S. national
securities exchange or quoted on NASDAQ or another established automated
over-the-counter trading market in the United States (or will be so traded or
quoted immediately following such merger, consolidation or other transaction)
and as a result of the merger, consolidation or other transaction the
Debentures become exchangeable into such shares of common stock (or depositary
receipts or other certificates representing common equity interests). For the
purposes of this definition, "person" includes any syndicate or group that
would be deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
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"Change in Control Purchase Date" has the meaning provided in Section
4.09 hereof.
"Change in Control Purchase Notice" has the meaning provided in
Section 4.09 hereof.
"Change in Control Purchase Price" has the meaning provided in
Section 4.09 hereof.
"Closing Sale Price" of the Company Common Shares or other capital
stock or similar equity interests or other publicly traded securities on any
date means the closing sale price per share (or, if no closing sale price is
reported, the average of the closing bid and ask prices or, if more than one
in either case, the average of the average closing bid and the average closing
ask prices) on such date as reported on the principal U.S. securities exchange
on which the Company Common Shares or such other capital stock or similar
equity interests or other securities are traded or, if the Company Common
Shares or such other capital stock or similar equity interests or other
securities are not listed on a U.S. national or regional securities exchange,
as reported by NASDAQ or by the National Quotation Bureau Incorporated or
another established over-the-counter trading market in the United States. The
Closing Sale Price shall be determined without regard to after-hours trading
or extended market making. In the absence of the foregoing, the Operating
Partnership shall determine the Closing Sale Price on such basis as it
considers appropriate.
"Company" has the meaning provided in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter, "Company" shall mean
such successor Person.
"Company Common Shares" means shares of common stock, par value $.01
per share, of the Company.
"Company Notice" has the meaning provided in Section 4.09 hereof.
"Daily Share Amount" has the meaning provided in Section 4.12 hereof.
"Debentures" has the meaning provided in Section 4.01 hereof which
shall be substantially in the form attached hereto as "Exhibit A."
"Depositary" has the meaning provided in Section 4.03 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agent" means the office or agency designated by the
Operating Partnership where the Debentures may be presented for exchange.
"Exchange Price" means, as of any date of determination, for $1,000
principal amount of Debentures, rounded to the nearest $0.01, with $0.005
rounded upward, the quotient of $1,000 divided by the Exchange Rate in effect
as of such date, rounded to the nearest $0.01, with $0.005 rounded upward.
"Exchange Rate" means the number of Company Common Shares by
reference to which the Exchange Value shall be determined, which shall be
initially 24.6124 Company Common
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Shares for each $1,000 principal amount of Debentures and as the same shall be
adjusted from time to time in accordance with the provisions hereof and of the
Debentures.
"Exchange Value" means, for each $1,000 principal amount of
Debentures, the product of (a) the applicable Exchange Rate, multiplied by (b)
the Average Price.
"Guarantee" means the full and unconditional guarantee provided by
the Company in respect of the Debentures as made applicable to the Debentures
in accordance with the provisions of Section 4.20 hereof.
"Indenture" has the meaning provided in the first paragraph of this
Officers' Certificate.
"Interest Payment Date" has the meaning provided in Section 4.05
hereof.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System.
"Net Amount" has the meaning provided in Section 4.12 hereof.
"Net Cash Amount" has the meaning provided in Section 4.12 hereof.
"Net Shares" has the meaning provided in Section 4.12 hereof.
"Operating Partnership" has the meaning specified in the first
paragraph of this Officers' Certificate until a successor Person shall have
become such pursuant to the applicable provisions of the Indenture, and
thereafter "Operating Partnership" shall mean such successor Person.
"Optional Repurchase Date" has the meaning provided in Section 4.08
hereof.
"Optional Repurchase Notice" has the meaning provided in Section 4.08
hereof.
"Optional Repurchase Price" has the meaning provided in Section 4.08
hereof.
"Principal Return" has the meaning provided in Section 4.12 hereof.
"Public Acquirer Change in Control" means any transaction described
in clause (1) of the definition of Change in Control where the acquirer, or
any entity that it is a direct or indirect "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power
of all shares of such acquirer's capital stock that are entitled to vote
generally in the election of directors, has a class of common stock (or
depositary receipts or other certificates representing common equity
interests) traded on a U.S. national securities exchange or quoted on NASDAQ
or another established over-the-counter trading market in the United States or
which will be so traded or quoted when issued or exchanged in connection with
such Change in Control; provided, however, that if there is more than one such
entity, the relevant entity will be such entity with the most direct
beneficial ownership to the capital stock of such acquirer or entity.
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"Redemption Date" means, with respect to any Debenture or portion
thereof to be redeemed in accordance with the provisions of Section 4.07
hereof, the date fixed for such redemption in accordance with the provisions
of Section 4.07 hereof.
"Redemption Price" has the meaning provided in Section 4.07 hereof.
"Regular Record Date" has the meaning provided in Section 4.05
hereof.
"Trading Day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if Company Common Shares
are not then listed on the New York Stock Exchange, on the principal other
U.S. national or regional securities exchange on which Company Common Shares
are then listed or, if Company Common Shares are not then listed on a U.S.
national or regional securities exchange, on NASDAQ or, if Company Common
Shares are not then quoted on NASDAQ, on the principal other market on which
Company Common Shares are then traded.
"Trading Price" means, with respect to the Debentures on any date of
determination, the average of the secondary market bid quotations per $1,000
principal amount of Debentures obtained by the Trustee for a $5,000,000
principal amount of Debentures at approximately 3:30 p.m., New York City time,
on such determination date from two independent nationally recognized
securities dealers selected by the Operating Partnership, which may include
Citigroup Global Markets Inc. or its successor. If at least two such bids
cannot reasonably be obtained by the Trustee, but one such bid can reasonably
be obtained by the Trustee, then one bid shall be used. If the Trustee cannot
reasonably obtain at least one bid for a $5,000,000 principal amount of
Debentures from a nationally recognized securities dealer or, in the
reasonable judgment of the Operating Partnership, the bid quotations are not
indicative of the secondary market value of the Debentures, then the Trading
Price per $1,000 principal amount of Debentures shall be deemed to be less
than 98% of the product of the Closing Sale Price of Company Common Shares and
the Exchange Rate on such determination date.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriting Agreement" means the Underwriting Agreement, dated June
21, 2005, among the Company, the Operating Partnership and Citigroup Global
Markets, Inc., as underwriter.
Article IV. Terms. The terms of the series of Securities established
pursuant to this Officers' Certificate shall be as follows:
Section 4.01. Title. The Securities of such series shall be
designated as the "4.00% Exchangeable Senior Debentures due 2025" of
the Operating Partnership (the "Debentures").
Section 4.02. Aggregate Principal Amount. The aggregate
principal amount of Debentures which may be authenticated and
delivered under the Indenture is initially limited in aggregate
principal amount to $250,000,000, as such amount may be increased,
but not by an amount in excess of $37,500,000, solely as a result of
the purchase of Additional Debentures pursuant to the underwriter's
over-allotment option granted by the
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Operating Partnership under the Underwriting Agreement, except for
Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures pursuant to
Section 304, 305, 306, 905, 1107 or 1203 of the Indenture and except
for any Debentures which, pursuant to Section 303 of the Indenture,
are deemed never to have been authenticated and delivered
thereunder; provided that the Operating Partnership may from time to
time, without notice to or the consent of the Holders of the
Debentures, create and issue further Securities (the "Additional
Debentures") having the same terms and ranking equally and ratably
with the Debentures in all respects and with the same CUSIP number
as the Debentures, except for the issue price and interest accrued
prior to the issue date of such Additional Debentures. Any
Additional Debentures will be consolidated and form a single series
with the Debentures and shall have the same terms as to status,
redemption and otherwise as the Debentures.
Section 4.03. Registered Securities in Book-Entry Form. The
Debentures shall be issuable in the form of one or more global
Securities registered in the name of The Depository Trust Company's
nominee, and shall be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the "Depositary"). The
Debentures may be surrendered for registration of transfer and for
exchange at the office or agency of the Operating Partnership or the
Company (including the Trustee) maintained for such purpose in the
Borough of Manhattan, The City of New York, or at any other office
or agency maintained by the Operating Partnership or the Company for
such purpose.
Section 4.04. Stated Maturity of Principal. The Stated Maturity
of the principal of the Debentures shall be June 15, 2025.
Section 4.05. Interest. The Debentures shall bear interest at
the rate of 4.00% per annum from June 27, 2005 or from the most
recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable semi-annually in arrears
on June 15 and December 15 of each year (each, an "Interest Payment
Date"), commencing on December 15, 2005, until the principal thereof
is paid or duly made available for payment, to the Persons in whose
names such Debentures are registered at the close of business on the
June 1 or December 1 (whether or not a Business Day in The City of
New York) immediately preceding the applicable Interest Payment Date
(each, a "Regular Record Date"). Interest payable on each Interest
Payment Date shall equal the amount of interest accrued for the
period commencing on and including the immediately preceding
Interest Payment Date in respect of which interest has been paid (or
commencing on and including June 27, 2005, if no interest has been
paid) and ending on and including the day preceding such Interest
Payment Date. Interest on the Debentures will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
If the Operating Partnership shall redeem the Debentures in
accordance with the provisions of Section 4.07 hereof, or if a
Holder shall surrender a Debenture for repurchase by the Operating
Partnership in accordance with the provisions of 4.08 or 4.09
hereof, accrued and unpaid interest, if any, shall be payable to the
Holder that shall have surrendered such Debenture for redemption or
repurchase, as the case may be. However, if an Interest Payment Date
shall fall on or prior to the Redemption Date or Optional
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Repurchase Date or Change in Control Purchase Date, as the case may
be, for a Debenture, accrued and unpaid interest due on such
Interest Payment Date shall be payable instead to the Person in
whose name such Debenture is registered at the close of business on
the related Regular Record Date.
Section 4.06. Place of Payment. The principal of and the
interest on the Debentures shall be payable at the office or agency
of the Company or the Operating Partnership (including the Trustee)
maintained for such purpose in the Borough of Manhattan, The City of
New York in the in the manner specified in the Indenture.
Section 4.07. Redemption. The Operating Partnership shall not
have the right to redeem any Debentures prior to June 18, 2010,
except to preserve the Company's status as a real estate investment
trust. If the Operating Partnership determines it is necessary to
redeem the Debentures in order to preserve the Company's status as a
real estate investment trust, the Operating Partnership may, upon
not less than 30 nor more than 60 days' prior written notice by mail
to the Holders of the Debentures, redeem the Debentures for cash, in
whole or in part, at 100% of the principal amount of the Debentures
to be redeemed plus unpaid interest, if any, accrued thereon to the
Redemption Date. In such case, the Operating Partnership shall
provide the Trustee with an Officers' Certificate evidencing that
the Board of Directors of the Company has, in good faith, made the
determination that it is necessary to redeem the Debentures in order
to preserve the Company's status as a real estate investment trust.
The Operating Partnership shall have the right to redeem the
Debentures for cash, in whole or in part at any time or from time to
time, on or after June 18, 2010 upon not less than 30 nor more than
60 days' prior written notice by mail to the registered Holders of
the Debentures, at a redemption price ("Redemption Price") equal to
100% of the principal amount of the Debentures to be redeemed plus
unpaid interest, if any, accrued thereon to the Redemption Date. If
less than all the Debentures are to be redeemed, the Trustee shall
select the Debentures to be redeemed on a pro rata basis or by any
other method the Trustee considers fair and appropriate. The Trustee
shall make the selection at least 30 days but not more than 60 days
before the Redemption Date from Outstanding Debentures not
previously called for redemption. Debentures and portions of the
principal amount thereof selected for redemption shall be in
integral multiples of $1,000. The Trustee shall notify the Operating
Partnership promptly of the Debentures or portions of the principal
amount thereof to be redeemed. If any Debenture selected for partial
redemption is exchanged in part in accordance with the provisions of
Section 4.11 hereof before termination of the exchange right with
respect to the portion of the Debenture so selected, the exchanged
portion of such Debenture shall be deemed to be from the portion
selected for redemption. Debentures that have been exchanged during
a selection of Debentures to be redeemed shall be treated by the
Trustee as Outstanding for the purpose of such selection.
In the event of any redemption in part, the Operating
Partnership shall not be required to: (i) issue or register the
transfer or exchange of any Debenture during a period beginning at
the opening of business 15 days before any selection of Debentures
for redemption and ending at the close of business on the earliest
date on which the relevant
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notice of redemption is deemed to have been given to all Holders of
Debentures to be so redeemed, or (ii) register the transfer or
exchange of any Debenture so selected for redemption, in whole or in
part, except the unredeemed portion of any Debenture being redeemed
in part.
In addition to those matters set forth in Section 1104 of the
Indenture, a notice of redemption sent to the Holders of Debentures
to be redeemed in accordance with the provisions of the two
preceding paragraphs shall state:
(a) the name of the Paying Agent and Exchange Agent;
(b) the then current Exchange Rate;
(c) that Debentures called for redemption may be exchanged at
any time prior to the close of business on the fifth
Business Day immediately preceding the Redemption Date;
and
(d) that Holders who wish to exchange Debentures must comply
with the procedures relating thereto specified in Section
4.13 hereof.
Section 4.08. Repurchase Rights. A Holder of Debentures shall
have the right to require the Operating Partnership to repurchase
all of its Debentures, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple thereof, on
each of June 15, 2010, June 15, 2015 and June 15, 2020 (each, an
"Optional Repurchase Date") for cash equal to 100% of the principal
amount of the Debentures to be repurchased plus unpaid interest, if
any, accrued thereon to the Optional Repurchase Date (such amount,
the "Optional Repurchase Price"), subject to satisfaction by or on
behalf of the Holder of the requirements set forth below.
On or before to the 30th day prior to each Optional Repurchase
Date, the Operating Partnership shall provide a written notice by
first-class mail to the Trustee, any Paying Agent and to all Holders
(and to beneficial owners as required by applicable law). The notice
shall include a form of Optional Repurchase Notice to be completed
by the Holder and shall state:
(a) the date by which the Optional Repurchase Notice must be
delivered to the Paying Agent;
(b) the Optional Repurchase Date;
(c) the Optional Repurchase Price;
(d) the name and address of the Trustee, the Paying Agent and
the Exchange Agent;
(e) that Debentures must be surrendered to the Paying Agent to
collect payment of the Optional Repurchase Price;
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(f) that the Optional Repurchase Price for any Debenture as to
which an Optional Repurchase Notice has been duly given
will be paid on the Optional Repurchase Date, or if the
Debentures are surrendered on or after the Optional
Repurchase Date, on the second Business Day following the
date on which such Debentures are surrendered for
repurchase;
(g) that, unless the Operating Partnership defaults in making
payment of the Optional Repurchase Price, interest on
Debentures surrendered for repurchase will cease to accrue
on and after the Optional Repurchase Date;
(h) that Debentures in respect of which an Optional Repurchase
Notice is provided by a Holder shall not be exchangeable
in accordance with their terms even if otherwise
exchangeable unless such Holder validly withdraws such
Optional Repurchase Notice in accordance with the
provisions of this Section 4.08; and
(i) the CUSIP number of the Debentures.
The Operating Partnership shall also disseminate a press
release through Dow Jones & Company, Inc. or Bloomberg Business News
containing the information specified in such notice or publish such
information in a newspaper of general circulation in The City of New
York or on the Company's website, or through such other public
medium as the Operating Partnership shall deem appropriate at such
time.
A Holder may exercise its rights specified in this Section 4.08
upon delivery of a written notice of repurchase (an "Optional
Repurchase Notice") to the Paying Agent during the period beginning
at any time from the opening of business on the date that is 30 days
prior to the applicable Optional Repurchase Date until the close of
business on the fifth Business Day prior to such Optional Repurchase
Date, stating:
(a) if such Debentures are in certificated form, the
certificate number(s) of the Debentures which the Holder
will deliver to be repurchased or, if such Debentures are in
book-entry form, that such notice complies with the
appropriate procedures of the Depositary;
(b) the portion of the principal amount of the Debentures to
be repurchased, in integral multiples of $1,000, provided
that the remaining principal amount of Debentures is in an
authorized denomination; and
(c) that such Debenture shall be repurchased pursuant to the
terms and conditions hereof and the Debentures.
The Paying Agent shall promptly notify the Operating Partnership and
the Company in writing of the receipt by it of any Optional Repurchase
Notice.
Book-entry transfer of Debentures in book-entry form in
compliance with appropriate procedures of the Depositary or delivery
of Debentures in certificated form
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(together with all necessary endorsements) to the Paying Agent prior
to, on or after the Optional Repurchase Date at the offices of the
Paying Agent shall be a condition to the receipt by the Holder of
the Optional Repurchase Price therefor. Holders electing to require
the Operating Partnership to repurchase Debentures must effect such
transfer or delivery to the Paying Agent prior to the Optional
Repurchase Date to receive payment of the Optional Repurchase Price
on the Optional Repurchase Date. The Operating Partnership shall pay
the Optional Repurchase Price within two Business Days after any
such transfer or delivery on or after the Optional Repurchase Date.
An Optional Repurchase Notice may be withdrawn by a Holder by
means of a written notice of withdrawal delivered to the office of
the Paying Agent prior to the close of business on the fifth
Business Day prior to the Optional Repurchase Date specifying:
(a) the principal amount of Debentures in respect of which the
Optional Repurchase Notice is being withdrawn;
(b) the certificate number(s) of all withdrawn Debentures in
certificated form or that the withdrawal notice complies
with appropriate procedures of the Depositary with respect
to all withdrawn Debentures in book-entry form; and
(c) the principal amount of Debentures, if any, which remains
subject to the Optional Repurchase Notice.
On or before 10:00 a.m. (New York City time) on the Optional
Repurchase Date, the Operating Partnership shall deposit with the
Paying Agent (or if the Operating Partnership or an Affiliate of the
Operating Partnership is acting as the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the aggregate Optional
Repurchase Price of the Debentures to be purchased pursuant to this
Section 4.08. If the Paying Agent holds, in accordance with the
terms of the Indenture, money sufficient to pay the Optional
Repurchase Price of such Debentures on the Optional Repurchase Date,
then, on and after such date, such Debentures shall cease to be
Outstanding and interest on such Debentures shall cease to accrue,
and all other rights of the Holder shall terminate (other than the
right to receive the Optional Repurchase Price upon delivery or
transfer of the Debentures). Such will be the case whether or not
book-entry transfer of the Debentures in book-entry form is made and
whether or not Debentures in certificated form, together with the
necessary endorsements, are delivered to the Paying Agent.
Notwithstanding the foregoing, no Debentures may be purchased
by the Operating Partnership in accordance with the provisions of
this Section 4.08 if there has occurred and is continuing an Event
of Default with respect to the Debentures (other than a default in
the payment of the Optional Repurchase Price).
To the extent legally required in connection with a repurchase
of Debentures, the Operating Partnership shall comply with the
provisions of Rule 13e-4 and other tender offer rules under the
Exchange Act then applicable, if any, and will file a Schedule TO or
any other schedule required under the Exchange Act.
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The Operating Partnership may arrange for a third party to
purchase Debentures for which the Operating Partnership has received
a valid Optional Repurchase Notice that has not been properly
withdrawn in the manner and otherwise in compliance with the
requirements set forth herein and in the Debentures. If a third
party purchases any Debentures under such circumstances, then
interest will continue to accrue on the Debentures and such
Debentures will continue to be Outstanding for all purposes of the
Indenture.
Section 4.09. Repurchase at Option of Holders upon a Change in
Control. If a Change in Control occurs at any time prior to June 15,
2010, a Holder of Debentures shall have the right to require the
Operating Partnership to repurchase all of its Debentures, or any
portion of the principal amount thereof that is equal to $1,000 or
an integral multiple thereof, for cash equal to 100% of the
principal amount of the Debentures to be repurchased, plus unpaid
interest, if any, accrued thereon to the Change in Control Purchase
Date (such amount, the "Change in Control Purchase Price"), subject
to satisfaction by or on behalf of the Holder of the requirements
set forth below.
Within 20 days after the occurrence of a Change in Control, the
Operating Partnership shall mail a written notice of Change in
Control (the "Company Notice") by first-class mail to the Trustee,
any Paying Agent and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of
Change in Control Purchase Notice to be completed by the Holder and
shall state:
(a) briefly, the events causing a Change in Control and the
date of such Change in Control;
(b) the date by which the Change in Control Purchase Notice
must be delivered to the Paying Agent;
(c) the date on which the Operating Partnership will
repurchase Debentures upon a Change in Control, which must
be not less than 15 nor more than 30 days after the date
of the Company Notice (such date, the "Change in Control
Purchase Date");
(d) the Change in Control Purchase Price;
(e) the name and address of the Trustee, the Paying Agent and
the Exchange Agent;
(f) that Debentures in respect of which a Change in Control
Purchase Notice is provided by a Holder shall not be
exchangeable unless such Holder validly withdraws such
Change in Control Purchase Notice in accordance with the
provisions of this Section 4.09;
(g) that Debentures must be surrendered to the Paying Agent to
collect payment of the Change in Control Purchase Price;
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(h) that the Change in Control Purchase Price for any
Debenture as to which a Change in Control Purchase Notice
has been duly given will be paid on the Change in Control
Purchase Date, or if the Debentures are surrendered on or
after the Change in Control Purchase Date, on the second
Business Day following the date on which such Debentures
are surrendered;
(i) that, unless the Operating Partnership defaults in making
payment of such Change in Control Purchase Price, interest
on Debentures surrendered for purchase will cease to
accrue on and after the Change in Control Purchase Date;
and
(j) the CUSIP number of the Debentures.
The Operating Partnership shall also disseminate a press
release through Dow Jones & Company, Inc. or Bloomberg Business News
announcing the occurrence of such Change in Control or publish such
information in a newspaper of general circulation in The City of New
York or on the Company's website, or through such other public
medium as the Operating Partnership shall deem appropriate at such
time.
A Holder may exercise its rights specified in this Section 4.09
upon delivery of a written notice of repurchase (a "Change in
Control Purchase Notice") to the Trustee (or any Paying Agent) at
any time prior to the close of business on the fifth Business Day
prior to the Change in Control Purchase Date, stating:
(a) if such Debentures are in certificated form, the
certificate number(s) of the Debentures which the Holder
will deliver to be repurchased or, if such Debentures are
in book-entry form, that such notice complies with the
appropriate procedures of the Depositary;
(b) the portion of the principal amount of the Debentures to
be repurchased, in integral multiples of $1,000, provided
that the remaining principal amount of Debentures is in an
authorized denomination; and
(c) that such Debenture shall be repurchased pursuant to the
terms and conditions hereof and of the Debentures.
The Trustee (or any Paying Agent) shall promptly notify the
Operating Partnership and the Company in writing of the receipt by
it of any Change in Control Purchase Notice.
Book-entry transfer of Debentures in book-entry form in
compliance with appropriate procedures of the Depositary or delivery
of Debentures in certificated form (together with all necessary
endorsements) to the Trustee prior to, on or after the Change in
Control Purchase Date at the offices of the Trustee (or any Paying
Agent) shall be a condition to the receipt by the Holder of the
Change in Control Purchase Price therefor. Holders electing to
require the Operating Partnership to repurchase Debentures must
either effect such transfer or delivery to the Trustee (or any
Paying Agent) prior to the Change in Control Purchase Date to
receive payment of the Change in Control Purchase Price on the
Change in Control Purchase Date. The Operating Partnership shall pay
the
12
Change in Control Purchase Price within two Business Days after any
such transfer or delivery on or after the Change in Control Purchase
Date.
A Change in Control Purchase Notice may be withdrawn by a
Holder means of a written notice of withdrawal delivered to the
office of the Paying Agent prior to the close of business on the
fifth Business Day prior to the Change in Control Purchase Date
specifying:
(a) the principal amount of Debentures in respect of which the
Change in Control Purchase Notice is being withdrawn;
(b) the certificate number(s) of all withdrawn Debentures in
certificated form or that the withdrawal notice complies
with appropriate procedures of the Depositary with respect
to all withdrawn Debentures in book-entry form; and
(c) the principal amount of Debentures, if any, which remains
subject to the Change in Control Purchase Notice.
On or before 10:00 a.m. (New York City time) on the Change in
Control Purchase Date, the Operating Partnership shall deposit with
the Paying Agent (or if the Operating Partnership or an Affiliate of
the Operating Partnership is acting as the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the aggregate
Change in Control Purchase Price of the Debentures to be purchased
pursuant to this Section 4.09. If the Paying Agent holds, in
accordance with the terms of the Indenture, money sufficient to pay
the Change in Control Purchase Price of such Debentures on the
Change in Control Purchase Date, then, on and after such date, such
Debentures shall cease to be Outstanding and interest on such
Debentures shall cease to accrue and all other rights of the Holder
shall terminate (other than the right to receive the Change in
Control Purchase Price upon delivery or transfer of the Debentures).
Such will be the case whether or not book-entry transfer of the
Debentures in book-entry form is made and whether or not Debentures
in certificated form, together with the necessary endorsements, are
delivered to the Paying Agent.
Notwithstanding the foregoing, no Debentures may be repurchased
by the Operating Partnership in accordance with the provisions of
this Section 4.09 if there has occurred and is continuing an Event
of Default with respect to the Debentures (other than a default in
the payment of the Change in Control Purchase Price).
To the extent legally required in connection with a repurchase
of Debentures, the Operating Partnership shall comply with the
provisions of Rule 13e-4 and other tender offer rules under the
Exchange Act then applicable, if any, and will file a Schedule TO or
any other schedule required under the Exchange Act.
The Operating Partnership may arrange for a third party to
purchase Debentures for which the Operating Partnership has received
a valid Change in Control Purchase Notice that has not been properly
withdrawn in the manner and otherwise in compliance with the
requirements set forth herein and in the Debentures. If a third
party purchases
13
any Debentures under such circumstances, then interest will continue
to accrue on the Debentures and such Debentures will continue to be
Outstanding for all purposes of the Indenture.
Section 4.10. Make Whole Amount and Public Acquirer Change in
Control. If a transaction described in clause (1) of the definition
of Change in Control occurs prior to June 15, 2010 and a Holder
elects to exchange its Debentures in connection with such Change in
Control, the Operating Partnership shall increase the applicable
Exchange Rate for the Debentures surrendered for exchange by a
number of additional Company Common Shares (the "Additional Shares")
as specified below. An exchange of Debentures shall be deemed for
these purposes to be "in connection with" such a Change in Control,
subject to the Operating Partnership's rights with respect to a
"Public Acquirer Change in Control" specified in the fourth to last
paragraph of this Section 4.10, if the notice of exchange of the
Debentures is received by the Exchange Agent on any date from and
including the date that is the 15th Business Day prior to the
anticipated Effective Date (as defined below) of such Change in
Control up to and including the fifth Business Day following the
Effective Date of such Change in Control.
The number of Additional Shares will be determined by reference
to the table below and is based on the date on which such Change in
Control transaction becomes effective (the "Effective Date") and the
price (the "Stock Price") paid per Company Common Share in such
Change in Control transaction. If holders of Company Common Shares
receive only cash in the applicable Change in Control transaction,
the Stock Price shall be the cash amount paid per Company Common
Share. Otherwise, the Stock Price shall be the average of the
Closing Sale Prices of Company Common Shares on the 10 consecutive
Trading Days up to but excluding the Effective Date.
The Stock Prices set forth in the first row of the table (i.e.,
the column headers) will be adjusted as of any date on which the
Exchange Rate of the Debentures is adjusted. The adjusted Stock
Prices will equal the Stock Prices applicable immediately prior to
such adjustment multiplied by a fraction, the numerator of which is
the Exchange Rate immediately prior to the adjustment giving rise to
the Stock Price adjustment and the denominator of which is the
Exchange Rate as so adjusted. In addition, the number of Additional
Shares will be subject to adjustment in the same manner as the
Exchange Rate in accordance with the provisions of Section 4.14
hereof.
The following table sets forth the Stock Price and number of
Additional Shares to be received per $1,000 principal amount of
Debentures:
Effective Stock Price
_______________________________________________________________________________________
Date $32.50 $35.00 $37.50 $40.00 $42.50 $45.00 $50.00 $55.00
_________ ________ __________ _________ __________ _________ _________ __________ ________
6/21/05 5.5265 3.9416 2.7371 1.8436 1.1955 0.7378 0.2106 0.0000
6/15/06 5.6283 3.9790 2.7349 1.8121 1.1464 0.6792 0.1488 0.0000
6/15/07 5.7272 3.9961 2.6812 1.7166 1.0346 0.5706 0.0836 0.0000
6/15/08 5.8046 3.9666 2.5694 1.5581 0.8649 0.4148 0.0000 0.0000
6/15/09 5.8961 3.8847 2.3372 1.2453 0.5532 0.1620 0.0000 0.0000
6/15/10 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
14
The exact Stock Prices and Effective Dates may not be set forth
on the table, in which case:
(a) if the Stock Price is between two Stock Price amounts in
the table or the Effective Date is between two dates in
the table, the Additional Shares will be determined by
straight-line interpolation between the number of
Additional Shares set forth for the higher and lower Stock
Price amounts and the two dates, as applicable, based on a
365-day year;
(b) if the Stock Price is equal to or in excess of $55.00 per
Company Common Share (subject to adjustment as specified
in the second preceding paragraph), no Additional Shares
will be issued upon an exchange of Debentures; and
(c) if the Stock Price is less than $32.50 per Company Common
Share (subject to adjustment as specified in the second
preceding paragraph), no Additional Shares will be issued
upon an exchange of Debentures.
Notwithstanding the foregoing, in no event shall the total
number of Company Common Shares issuable upon an exchange of
Debentures exceed 30.7692 shares per $1,000 principal amount of
Debentures, subject to adjustment in the same manner as the Exchange
Rate pursuant to Section 4.14 hereof.
Notwithstanding the foregoing, and in lieu of adjusting the
Exchange Rate as set forth above in this Section 4.10, in the case
of a Public Acquirer Change in Control, the Operating Partnership
may, at any time prior to the 15th Business Day immediately
preceding the proposed Effective Date of the Public Acquirer Change
in Control, irrevocably elect to change the exchange obligation of
the Operating Partnership with respect to the Debentures into an
obligation to deliver, upon an exchange of Debentures, cash, shares
of Acquirer Common Stock, or a combination thereof, at the option of
the Operating Partnership in the same manner as the Operating
Partnership would otherwise be required to satisfy its exchange
obligations in accordance with the provisions of Section 4.12
hereof. If the Operating Partnership makes such an election, the
Exchange Rate at the effective time of such Public Acquirer Change
in Control will be a number of shares of Acquirer Common Stock equal
to the product of:
(a) the Exchange Rate in effect immediately prior to the
Effective Date of such Public Acquirer Change in Control,
times
(b) the average of the quotients obtained, for each Trading
Day in the 10 consecutive Trading Day period commencing on
the Trading Day next succeeding the Effective Date of such
Public Acquirer Change in Control (the "valuation
period"), of:
(i) the "acquisition value" of Company Common Shares on
each such Trading Day in the valuation period,
divided by
15
(ii) the Closing Sale Price of the Acquirer Common Stock
on each such Trading Day in the valuation period.
If the Operating Partnership elects to adjust the exchange
right and exchange obligation in connection with a Public Acquirer
Change in Control as described in this Section 4.10, it must send
Holders of Debentures written notice of the adjustment not later
than 15 Business Days prior to but excluding the expected Effective
Date of such Public Acquirer Change in Control and thereafter cause
to be executed a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such
supplemental indenture) giving due effect to such election. If the
Operating Partnership makes such an election, Holders of Debentures
who tender their Debentures for exchange will not have the right to
receive any Additional Shares in accordance with the provisions of
this Section 4.10.
The "acquisition value" of Company Common Shares means, for
each Trading Day in the valuation period, the value of the
consideration paid per Company Common Share in connection with such
Public Acquirer Change in Control, as follows:
(a) for any cash, 100% of the face amount of such cash;
(b) for any Acquirer Common Stock, 100% of the Closing Sale
Price of such Acquirer Common Stock on each such Trading
Day; and
(c) for any other securities, assets or property, 100% of the
fair market value of such securities, assets or property
on each such Trading Day, as determined by the Company's
Board of Directors.
After the adjustment of the Exchange Rate in connection with a
Public Acquirer Change in Control, the Exchange Rate will be subject
to further adjustments in the event that any of the events described
in Section 4.14 hereof occur thereafter.
Section 4.11. Exchange Rights.
Subject to the restrictions on ownership of Company Common
Shares as set forth in Section 4.15 hereof and to the conditions set
forth herein, Holders may surrender their Debentures for exchange at
any time prior to the close of business on the second Business Day
immediately preceding the Stated Maturity of the Debentures at any
time on or after June 15, 2024 and also under any of the
circumstances set forth in this Section 4.11.
(a) Exchange Upon Satisfaction of Market Price Condition.
A Holder may surrender any of its Debentures for exchange
during any calendar quarter beginning after September 30, 2005
if, and only if, the Closing Sale Price of Company Common
Shares for at least 20 Trading Days in the period of 30
consecutive Trading Days ending on the last Trading Day of the
preceding calendar quarter is more than 125% of the Exchange
Price per Company Common Share in effect on the applicable
Trading Day. The Board of Directors of the Company shall make
appropriate adjustments, in its good faith determination, to
account for any adjustment to the
16
Exchange Rate that becomes effective, or any event requiring an
adjustment to the Exchange Rate where the ex-dividend date of
the event occurs, during that 30 consecutive trading-day
period.
(b) Exchange Upon Satisfaction of Trading Price Condition.
A Holder may surrender any of its Debentures for exchange
during the five consecutive Trading Day period following any 20
consecutive Trading Days in which the Trading Price per $1,000
principal amount of Debentures (as determined following a
reasonable request by a Holder of the Debentures) was less than
98% of the product of the Closing Sale Price of Company Common
Shares multiplied by the Exchange Rate in effect on the
applicable Trading Day.
The Trustee shall have no obligation to determine the
Trading Price of the Debentures unless the Operating
Partnership shall have requested such determination, and the
Operating Partnership shall have no obligation to make such
request unless a Holder provides the Operating Partnership with
written reasonable evidence that the Trading Price per $1,000
principal amount of the Debentures would be less than 98% of
the product of the Closing Sale Price of Company Common Shares
and the Exchange Rate, whereupon the Operating Partnership
shall instruct the Trustee to determine the Trading Price of
the Debentures beginning on the next Trading Day and on each
successive Trading Day until the Trading Price is greater than
or equal to 98% of the product of the Closing Sale Price of
Company Common Shares and the Exchange Rate.
(c) Exchange Upon Notice of Redemption. A Holder may
surrender for exchange any of the Debentures called for
redemption at any time prior to the close of business on the
fifth Business Day prior to the Redemption Date, even if the
Debentures are not otherwise exchangeable at such time. The
right to exchange Debentures pursuant to this clause (c) will
expire after the close of business on the fifth Business Day
prior to the Redemption Date unless the Operating Partnership
defaults in making the payment due upon redemption. A Holder
may exchange fewer than all of its Debentures so long as the
Debentures exchanged are an integral multiple of $1,000
principal amount and the remaining principal amount of
Debentures is in an authorized denomination. However, if a
Holder has already delivered an Optional Repurchase Notice or a
Change in Control Purchase Notice with respect to a Debenture,
such Holder may not surrender such Debenture for exchange until
it has withdrawn such notice in accordance with the applicable
provisions of Section 4.08 or 4.09 hereof, as the case may be.
(d) Exchange Upon Specified Transactions. If the Company
elects to:
(i) distribute to all holders of Company Common Shares
rights entitling them to purchase, for a period
expiring within 45 days, Company Common Shares at
less than the Closing Sale Price of Company Common
Shares on the Trading Day immediately preceding
the declaration date of the distribution; or
17
(ii) distribute to all holders of Company Common Shares
assets, debt securities or rights to purchase
securities of the Operating Partnership or the
Company, which distribution has a per share value
exceeding 10% of the Closing Sale Price of Company
Common Shares on the Trading Day immediately
preceding the declaration date of such
distribution,
the Operating Partnership shall notify the Holders of the
Debentures in writing at least 20 days prior to the ex-dividend
date for such distribution. Following the issuance of such
notice, Holders may surrender their Debentures for exchange at
any time until the earlier of the close of business on the
Business Day prior to the ex-dividend date or an announcement
that such distribution will not take place; provided, however,
that a Holder may not exercise this right to exchange if the
Holder may participate, on an as-exchanged basis, in the
distribution without an exchange of Debentures. The ex-dividend
date is the first date upon which a sale of the Company Common
Shares does not automatically transfer the right to receive the
relevant distribution from the seller of Company Common Shares
to its buyer.
In addition, if the Operating Partnership or the Company
is party to a consolidation, merger or binding share exchange
pursuant to which all of the Company Common Shares would be
exchanged for cash, securities or other property, a Holder may
surrender Debentures for exchange at any time from and
including the date that is 15 Business Days prior to the
anticipated effective time of the transaction up to and
including five Business Days after the actual date of such
transaction. The Operating Partnership shall notify Holders as
promptly as practicable following the date it publicly
announces such transaction (but in no event less than 15
Business Days prior to the effective time of such transaction).
If the Operating Partnership or the Company is a party to
a consolidation, merger or binding share exchange pursuant to
which all of the Company Common Shares are exchanged for cash,
securities or other property, then at the effective time of the
transaction any exchange of Debentures and the Exchange Value
will be based on the kind and amount of cash, securities or
other property that the Holder would have received if the
Holder had exchanged its Debentures immediately prior to the
effective time of the transaction (assuming such Holder did not
exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon
such consolidation, merger or binding share exchange) unless
the Operating Partnership has elected to adjust the Exchange
Rate and the exchange right for a Public Acquirer Change in
Control as described in Section 4.10 hereof. If such
transaction constitutes a Change in Control as described in
clause (1) of the definition thereof, the Operating Partnership
will adjust the Exchange Rate for Debentures tendered for
exchange in connection with such a Change in Control
transaction, as described in Section 4.10 hereof. However, the
Operating Partnership shall not make such an adjustment if such
Change in Control also constitutes a Public Acquirer Change in
Control and the Operating Partnership elects to modify the
Exchange Rate and the
18
exchange right as described in the third to last paragraph of
Section 4.10 hereof. In addition, if such transaction
constitutes a Change in Control, each Holder shall be able to
require the Operating Partnership to repurchase all or a
portion of such Holder's Debentures in the manner set forth in
Section 4.09 hereof.
In connection with any consolidation, merger or binding
exchange, the Operating Partnership will specify in the notice
to Holders whether Holders will be entitled to Additional
Shares or cash, Acquirer Common Stock or a combination of cash
and Acquirer Common Stock, at the option of the Operating
Partnership, as described in Section 4.10.
(e) Exchange Upon Delisting of Company Common Shares. A
Holder of Debentures may surrender any of its Debentures for
exchange at any time beginning on the first Business Day after
the Company Common Shares have ceased to be listed on a U.S.
national or regional securities exchange or quoted on NASDAQ
for a 30 consecutive Trading Day period.
Section 4.12. Exchange Settlement. Subject to the provisions of
Section 4.10, upon an exchange of Debentures, the Operating
Partnership shall deliver, in respect of each $1,000 principal
amount of Debentures tendered for exchange in accordance with their
terms:
(a) cash in an amount (the "Principal Return") equal to the
lesser of (1) the principal amount of the Debentures
surrendered for exchange and (2) the Exchange Value, and
(b) if the Exchange Value is greater than the Principal
Return, an amount (the "Net Amount") in cash and/or
Company Common Shares with an aggregate value equal to the
difference between the Exchange Value and the Principal
Return.
The Operating Partnership may elect to deliver any portion of
the Net Amount in cash (the "Net Cash Amount") or Company Common
Shares, and any portion of the Net Amount the Operating Partnership
elects to deliver in Company Common Shares (the "Net Shares") will
be the sum of the Daily Share Amounts for each Trading Day during
the Applicable Exchange Period. Prior to the close of business on
the second Trading Day following the date on which Debentures are
tendered for exchange, the Operating Partnership shall inform
Holders of such Debentures of its election to pay cash for all or a
portion of the Net Amount and, if applicable, the portion of the Net
Amount that will be paid in cash and the portion that will be
delivered in the form of Net Shares.
The Operating Partnership shall deliver cash in lieu of any
fractional Company Common Shares issuable in connection with payment
of the Net Shares based upon the Average Price.
The "Daily Share Amount" for each $1,000 principal amount of
Debentures and each Trading Day in the Applicable Exchange Period is
equal to the greater of:
19
(a) zero; and
(b) a number of Company Common Shares determined by the
following formula:
__ ___
| (CSP x ER) - ($1,000 + the Net Cash Amount, if any) |
| --------------------------------------------------------------- |
| 10 x CSP |
|__ ___|
where
CSP means the Closing Sale Price of Company Common Shares on
such Trading Day, and
ER means the applicable Exchange Rate
The Operating Partnership will determine the Exchange Value,
Principal Return, Net Amount, Net Cash Amount and the number of Net
Shares, as applicable, promptly after the end of the Applicable
Exchange Period. The Operating Partnership shall pay the Principal
Return and cash in lieu of fractional shares, and deliver Net Shares
or pay the Net Cash Amount, as applicable, no later than the third
Business Day following the determination of the Average Price.
Section 4.13. Exchange Procedures. To exchange Debentures, a
Holder must satisfy the requirements set forth in this Section 4.13.
To exchange the Debentures, a Holder must (a) complete and
manually sign the irrevocable exchange notice on the reverse of the
Debenture (or complete and manually sign a facsimile of such notice)
and deliver such notice to the Exchange Agent at the office
maintained by the Exchange Agent for such purpose, (b) with respect
to Debentures which are in certificated form, surrender the
Debentures to the Exchange Agent, (c) furnish appropriate
endorsements and transfer documents if required by the Exchange
Agent, the Company or the Trustee and (d) pay any transfer or
similar tax, if required. The date on which the Holder satisfies all
such requirements shall be deemed to be the date on which the
applicable Debentures shall have been tendered for exchange.
Debentures in respect of which a Holder has delivered an
Optional Repurchase Notice or Change in Control Purchase Notice may
be exchanged only if such notice is withdrawn in accordance with the
terms of Section 4.08 or Section 4.09, as the case may be.
In case any Debenture shall be surrendered for partial
exchange, the Operating Partnership shall execute and the Trustee
shall authenticate and deliver to, or upon the written order of, the
Holder of the Debenture so surrendered, without charge to such
holder, a new Debenture or Debentures in authorized denominations in
an aggregate principal amount equal to the portion of the
surrendered Debentures not surrendered for
20
exchange. A Holder may exchange fewer than all of such Holder's
Debentures so long as the Debentures exchanged are an integral
multiple of $1,000 principal amount.
Upon surrender of a Debenture for exchange by a Holder, such
Holder shall deliver to the Operating Partnership cash equal to the
amount that the Operating Partnership is required to deduct and
withhold under applicable law in connection with the exchange;
provided, however, if the Holder does not deliver such cash, the
Operating Partnership may deduct and withhold from the amount of
consideration otherwise deliverable to such Holder the amount
required to be deducted and withheld under applicable law.
A Holder will not receive any cash payment representing accrued
and unpaid interest upon exchange of a Debenture. Instead, upon an
exchange of Debentures, the Operating Partnership will deliver to
tendering Holders only the consideration specified in Section 4.12.
Delivery of cash and Company Common Shares, if any, upon an exchange
of Debentures will be deemed to satisfy the Operating Partnership's
obligation to pay the principal amount of the Debentures and any
accrued and unpaid interest. Accordingly, upon an exchange of
Debentures, any accrued and unpaid interest will be deemed paid in
full rather than canceled, extinguished or forfeited. In no event
will the Exchange Rate be adjusted to account for accrued interest
on the Debentures.
Holders of Debentures at the close of business on a Regular
Record Date for an interest payment will receive payment of interest
payable on the corresponding Interest Payment Date, notwithstanding
the exchange of such Debentures at any time after the close of
business on the applicable Regular Record Date. Debentures tendered
for exchange by a Holder after the close of business on any Regular
Record Date for an interest payment and on or prior to the
corresponding Interest Payment Date must be accompanied by payment
of an amount equal to the interest that such Holder is to receive on
such Debentures on such Interest Payment Date; provided, however,
that no such payment shall be required (1) if such Debentures have
been called for redemption on a Redemption Date that is after such
Regular Record Date and on or prior to such Interest Payment Date or
(2) with respect to overdue interest, if any overdue interest exists
at the time of exchange with respect to such Debentures.
Upon exchange of a Debenture, the Operating Partnership, if it
elects to deliver Net Shares, will pay any documentary, stamp or
similar issue or transfer tax due on the issue of the Net Shares, if
any, unless the tax is due because the Holder requests the shares to
be issued or delivered to a person other than the Holder, in which
case the Holder must pay the tax due prior to the delivery of such
Net Shares. Certificates representing Company Common Shares will not
be issued or delivered unless all taxes and duties, if any, payable
by the Holder have been paid.
A Holder of Debentures, as such, shall not be entitled to any
rights of a holder of Company Common Shares. Such Holder shall only
acquire such rights upon the delivery by the Operating Partnership,
at its option, of Net Shares in accordance with the provisions of
Section 4.12 in connection with the exchange by a Holder of
Debentures.
21
If a Holder exchanges more than one Debenture at the same time,
the number of Net Shares, if any, issuable upon the exchange shall
be based on the total principal amount of the Debentures surrendered
for exchange.
The Company shall, prior to issuance of any Debentures
hereunder, and from time to time as may be necessary, reserve out of
its authorized but unissued common stock a sufficient number of
Company Common Shares to permit the exchange of the Debentures. Any
Company Common Shares delivered upon an exchange of Debentures shall
be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company shall endeavor promptly to comply with all federal
and state securities laws regulating the issuance and delivery of
Company Common Shares, if any, upon an exchange of Debentures and
shall cause to have listed or quoted all such Company Common Shares
on each U.S. national securities exchange or over-the-counter or
other domestic market on which the Company Common Shares are then
listed or quoted.
Except as set forth herein, no other payment or adjustment for
interest shall be made upon exchange of Debentures.
Section 4.14. Exchange Rate Adjustments. The Exchange Rate
shall be adjusted from time to time as follows:
(a) If the Company issues Company Common Shares as a
dividend or distribution on Company Common Shares to all
holders of Company Common Shares, or if the Company effects a
share split or share combination, the Exchange Rate will be
adjusted based on the following formula:
ER1 = ER0 x OS1/OS0
where
ER0 = the Exchange Rate in effect immediately
prior to the adjustment relating to
such event
ER1 = the new Exchange Rate in effect taking into
account such event
OS0 = the number of Company Common Shares
outstanding immediately prior to such event
OS1 = the number of Company Common Shares
outstanding immediately after such event.
Any adjustment made pursuant to this paragraph (a) shall become
effective on the date that is immediately after (x) the date
fixed for the determination of shareholders entitled to receive
such dividend or other distribution or (y) the date on which
such
22
split or combination becomes effective, as applicable. If any
dividend or distribution described in this paragraph (a) is
declared but not so paid or made, the new Exchange Rate shall be
readjusted to the Exchange Rate that would then be in effect if
such dividend or distribution had not been declared.
(b) If the Company issues to all holders of Company Common
Shares any rights, warrants, options or other securities
entitling them for a period of not more than 45 days after the
date of issuance thereof to subscribe for or purchase Company
Common Shares, or issues to all holders of Company Common
Shares securities convertible into Company Common Shares for a
period of not more than 45 days after the issuance thereof, in
either case at an exercise price per Company Common Share or a
conversion price per Company Common Share less than the Closing
Sale Price of Company Common Shares on the Business Day
immediately preceding the time of announcement of such
issuance, the Exchange Rate will be adjusted based on the
following formula:
ER1 = ER0 x (OS0+X)/(OS0+Y)
where
ER0 = the Exchange Rate in effect immediately prior
to the adjustment relating to such event
ER1 = the new Exchange Rate taking such event into
account
OS0 = the number of Company Common Shares
outstanding immediately prior to such event
X = the total number of Company Common
Shares issuable pursuant to such rights,
warrants, options, other securities or
convertible securities
Y = the number of Company Common Shares
equal to the quotient of (A) the aggregate
price payable to exercise such rights,
warrants, options, other securities or
convertible securities and (B) the average
of the Closing Sale Prices of Company
Common Shares for the 10 consecutive
Trading Days prior to the Business Day
immediately preceding the date of
announcement for the issuance of such
rights, warrants, options, other
securities or convertible securities.
For purposes of this paragraph (b), in determining whether any
rights, warrants, options, other securities or convertible
securities entitle the holders to subscribe for or purchase, or
exercise a conversion right for, Company Common Shares at less
than the applicable Closing Sale Price of Company Common
Shares, and in determining the aggregate exercise or conversion
price payable for such Company Common Shares, there shall be
taken into account any consideration received by the Company
for such rights, warrants, options, other securities or
convertible securities and any
23
amount payable on exercise or conversion thereof, with the
value of such consideration, if other than cash, to be
determined by the Company's Board of Directors. If any right,
warrant, option, other security or convertible security
described in this paragraph (b) is not exercised or converted
prior to the expiration of the exercisability or convertibility
thereof, the new Exchange Rate shall be readjusted to the
Exchange Rate that would then be in effect if such right,
warrant, option, other security or convertible security had not
been so issued.
(c) If the Company distributes shares of capital stock,
evidences of indebtedness or other assets or property of the
Company to all holders of Company Common Shares, excluding:
(i) dividends, distributions, rights, warrants,
options, other securities or convertible
securities referred to in paragraph (a) or (b)
above,
(ii) dividends or distributions paid exclusively in
cash, and
(iii) Spin-Offs described below in this paragraph (c)
then the Exchange Rate will be adjusted based on the following
formula:
ER1 = ER0 x SP0/(SP0-FMV)
where
ER0 = the Exchange Rate in effect immediately prior
to the adjustment relating to such event
ER1 = the new Exchange Rate taking such event into
account
SP0 = the average of the Closing Sale Prices
of Company Common Shares for the 10
consecutive Trading Days prior to the
Business Day immediately preceding the
earlier of the record date or the
ex-dividend date for such distribution
FMV = the fair market value (as determined in
good faith by the Company's Board of
Directors) of the shares of capital stock,
evidences of indebtedness, assets or
property distributed with respect to each
outstanding Company Common Share on the
earlier of the record date or the
ex-dividend date for such distribution.
An adjustment to the Exchange Rate made pursuant to the
immediately preceding paragraph shall be made successively
whenever any such distribution is made and shall become
effective on the day immediately after the date fixed for the
determination of holders of Company Common Shares entitled to
receive such distribution.
24
If the Company distributes to all holders of Company
Common Shares capital stock of any class or series, or similar
equity interest, of or relating to a subsidiary or other
business unit of the Company (a "Spin-Off"), the Exchange Rate
in effect immediately before the close of business on the date
fixed for determination of holders of Company Common Shares
entitled to receive such distribution will be adjusted based on
the following formula:
ER1 = ER0 x (FMV0+MP0)/MP0
where
ER0 = the Exchange Rate in effect immediately prior
to the adjustment relating to such event
ER1 = the new Exchange Rate taking such event into
account
FMV0= the average of the Closing Sale
Prices of the capital stock or similar
equity interest distributed to holders
of Company Common Shares applicable to
one Company Common Share over the
first 10 consecutive Trading Days
after the effective date of the
Spin-Off
MP0 = the average of the Closing Sale
Prices of Company Common Shares over
the first 10 consecutive Trading Days
after the effective date of the
Spin-Off.
An adjustment to the Exchange Rate made pursuant to the
immediately preceding paragraph will occur on the 10th Trading
Day from, and including, the effective date of the Spin-Off.
If any such dividend or distribution described in this
paragraph (c) is declared but not paid or made, the new
Exchange Rate shall be readjusted to be the Exchange Rate that
would then be in effect if such dividend or distribution had
not been declared.
(d) If the Company makes any cash dividend or distribution
during any of its quarterly fiscal periods to all holders of
Company Common Shares in an aggregate amount that, together
with other cash dividends or distributions made during such
quarterly fiscal period, exceeds the product of $0.4246 (the
"Reference Dividend") multiplied by the number of Company
Common Shares outstanding on the record date for such
distribution, the Exchange Rate will be adjusted based on the
following formula:
ER1 = ER0 x SP0/(SP0-C)
where
25
ER0 = the Exchange Rate in effect immediately prior
to the adjustment relating to such event
ER1 = the new Exchange Rate taking such event into
account
SP0 = the average of the Closing Sale Prices
of Company Common Shares for the 10
consecutive Trading Days prior to the
business day immediately preceding the
earlier of the record date or the day
prior to the ex-dividend date for such
distribution
C = the amount in cash per Company Common Share
that the Company distributes to holders of
Common Shares during such quarterly fiscal
Company period that exceeds the Reference
Dividend.
An adjustment to the Exchange Rate made pursuant to this
paragraph (d) shall become effective on the date immediately
after the date fixed for the determination of holders of
Company Common Shares entitled to receive such dividend or
distribution. If any dividend or distribution described in this
paragraph (d) is declared but not so paid or made, the new
Exchange Rate shall be readjusted to the Exchange Rate that
would then be in effect if such dividend or distribution had
not been declared.
The Reference Dividend shall be subject to adjustment on
account of any of the events set forth in paragraph (a) above.
Any such adjustment will be effected by multiplying the
Reference Dividend by a fraction, the numerator of which will
equal OS0 and the denominator of which will equal OS1, in each
case, within the meaning of paragraph (a) above.
(e) If the Company or any of its subsidiaries makes a
payment in respect of a tender offer or exchange offer for
Company Common Shares to the extent that the cash and value of
any other consideration included in the payment per Company
Common Share exceeds the Closing Sale Price of a Company Common
Share on the Trading Day next succeeding the last date on which
tenders or exchanges may be made pursuant to such tender or
exchange offer (the "Expiration Time"), the Exchange Rate will
be adjusted based on the following formula:
ER1 = ER0 x (AC + (SP1 x OS1))/(SP1 x OS0)
where
ER0 = the Exchange Rate in effect immediately prior
to the adjustment relating to such event
ER1 = the new Exchange Rate taking such event into
account
AC = the aggregate value of all cash and any
other consideration (as determined by the
Company's Board of Directors) paid or
payable
26
for Company Common Shares purchased in such
tender or exchange offer
OS0 = the number of Company Common Shares
outstanding immediately prior to the date
such tender or exchange offer expires
OS1 = the number of Company Common Shares
outstanding immediately after such tender
or exchange offer expires (after giving
effect to the purchase or exchange of
shares pursuant to such tender or exchange
offer)
SP1 = the average of the Closing Sale Prices
of Company Common Shares for the 10
consecutive Trading Days commencing on the
Trading Day next succeeding the date such
tender or exchange offer expires.
If the application of the foregoing formula would result
in a decrease in the Exchange Rate, no adjustment to the
Exchange Rate will be made.
Any adjustment to the Exchange Rate made pursuant to this
paragraph (e) shall become effective on the date immediately
following the Expiration Time. If the Company or one of its
subsidiaries is obligated to purchase Company Common Shares
pursuant to any such tender or exchange offer, but is
permanently prevented by applicable law from effecting any such
purchase or all such purchases are rescinded, the new Exchange
Rate shall be readjusted to be the Exchange Rate that would be in
effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing, in the event of an
adjustment to the Exchange Rate pursuant to paragraph (d) or
(e) above, in no event will the Exchange Rate exceed 30.7692,
subject to adjustment pursuant to paragraphs (a), (b) and (c)
above.
(g) If the Company has in effect a rights plan while any
Debentures remain Outstanding, Holders of Debentures will
receive, upon an exchange of Debentures in respect of which the
Operating Partnership elects to deliver Net Shares, in addition
to such Net Shares, rights under the Company's shareholder
rights agreement unless, prior to exchange, the rights have
expired, terminated or been redeemed or unless the rights have
separated from the Company Common Shares. If the rights
provided for in the rights plan adopted by the Company have
separated from the Company Common Shares in accordance with the
provisions of the applicable shareholder rights agreement so
that Holders of Debentures would not be entitled to receive any
rights in respect of Company Common Shares that the Operating
Partnership elects to deliver as Net Shares upon exchange of
Debentures, the Exchange Rate will be adjusted at the time of
separation as if the Company had distributed, to all holders of
Company Common Shares, capital stock, evidences of indebtedness
or other assets or property pursuant to paragraph (c) above,
subject to readjustment upon the subsequent expiration,
termination or redemption of the rights. In lieu of any such
27
adjustment, the Company may amend such applicable shareholder
rights agreement to provide that upon an exchange of Debentures
the Holders will receive, in addition to Company Common Shares
that the Operating Partnership elects to deliver as Net Shares
upon such exchange, the rights which would have attached to
such Company Common Shares if the rights had not become
separated from the Company Common Shares under such applicable
shareholder rights agreement. To the extent that the Company
adopts any future shareholder rights agreement, upon an
exchange of Debentures in respect of which the Operating
Partnership elects to deliver Company Common Shares as Net
Shares, a Holder of Debentures shall receive, in addition to
such Net Shares, the rights under the future shareholder
rights agreement whether or not the rights have separated from
Company Common Shares at the time of exchange and no adjustment
will be made in accordance with paragraph (c) or otherwise.
In addition to the adjustments pursuant to paragraphs (a)
through (g) above, the Operating Partnership may increase the
Exchange Rate in order to avoid or diminish any income tax to
holders of the Company Common Shares resulting from any
dividend or distribution of capital stock (or rights to acquire
Company Common Shares) or from any event treated as such for
income tax purposes. The Operating Partnership may also, from
time to time, to the extent permitted by applicable law,
increase the Exchange Rate by any amount for any period if the
Operating Partnership has determined that such increase would
be in the best interests of the Operating Partnership or the
Company. If the Operating Partnership makes such determination,
it will be conclusive and Operating Partnership will mail to
Holders of the Debentures a notice of the increased Exchange
Rate and the period during which it will be in effect at least
fifteen (15) days prior to the date the increased Exchange Rate
takes effect in accordance with applicable law.
If, in connection with any adjustment to the Exchange Rate
as set forth in this Section 4.14 a Holder shall be deemed for
U.S. federal tax purposes to have received a distribution or an
additional interest payment, the Operating Partnership may set
off any withholding tax it or the Company is required to
collect with respect to any such deemed distribution or payment
against cash payments of interest in accordance with the
provisions of Section 4.05 hereof or from cash and Company
Common Shares, if any, otherwise deliverable to a Holder upon
an exchange of Debentures in accordance with the provisions of
Section 4.12 hereof or a redemption or repurchase of a
Debenture in accordance with the provisions of Section 4.07,
4.08 or 4.09 hereof.
The Operating Partnership will not make any adjustment to
the Exchange Rate if Holders of the Debentures are permitted to
participate, on an as-exchanged basis, in the transactions
described above.
Notwithstanding anything to the contrary contained herein,
in addition to the other events set forth berein on account of
which no adjustment to the Exchange Rate shall be made, the
applicable Exchange Rate shall not be adjusted for:
(i) the issuance of any Company Common Shares pursuant to
any present or future plan providing for the
reinvestment of dividends or interest
28
payable on securities of the Operating Partnership or
those of the Company and the investment of additional
optional amounts in Company Common Shares under any
plan;
(ii) the issuance of any Company Common Shares or options
or rights to purchase those shares pursuant to any
present or future employee, trustee or consultant
benefit plan, employee agreement or arrangement or
program of the Operating Partnership or the Company;
(iii) the issuance of any Company Common Shares pursuant
to any option, warrant, right, or exercisable,
exchangeable or convertible security outstanding as
of the date the Debentures were first issued;
(iv) a change in the par value of Company Common Shares;
(v) accumulated and unpaid dividends or distributions;
(vi) as a result of a tender offer solely to holders of
less than 100 Company Common Shares; and
(vii) the issuance of limited partnership units by the
Operating Partnership and the issuance of Company
Common Shares or the payment of cash upon redemption
thereof.
No adjustment in the Exchange Rate will be required unless
the adjustment would require an increase or decrease of at
least 1% of the Exchange Price. If the adjustment is not made
because the adjustment does not change the Exchange Price by at
least 1%, then the adjustment that is not made will be carried
forward and taken into account in any future adjustment. All
required calculations will be made to the nearest cent or
1/1000th of a share, as the case may be. Notwithstanding the
foregoing, if the Debentures are called for redemption, all
adjustments not previously made will be made on the applicable
Redemption Date. Except as specifically described above, the
applicable Exchange Rate will not be subject to adjustment in
the case of the issuance of any Company Common Shares or
Company preferred shares, or securities exchangeable into or
exchangeable for Company Common Shares or Company preferred
shares.
Whenever the Exchange Rate is adjusted as herein provided,
the Company or the Operating Partnership shall as promptly as
reasonably practicable file with the Trustee and any Exchange
Agent other than the Trustee an Officers' Certificate setting
forth the Exchange Rate after such adjustment and setting forth
a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company or the
Operating Partnership shall prepare a notice of such adjustment
of the Exchange Rate setting forth the adjusted Exchange Rate
and the date on which each adjustment becomes effective and
shall mail such notice of such adjustment of the Exchange Rate
to the Holders of the Debentures within 20 Business Days of the
Effective Date of such adjustment. Failure to deliver such
notice shall not affect the legality or validity of any such
adjustment.
29
For purposes of this Section 4.14, the number of Company
Common Shares 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 Company Common Shares.
Notwithstanding anything in this Section 4.14 to the
contrary, in no event shall the Exchange Rate be adjusted so
that the Exchange Price would be less than $0.01.
Subject to the provisions of Section 4.10 pursuant to
which the Operating Partnership may elect to adjust the
Exchange Rate and the exchange right in connection with a
Public Acquirer Change in Control, if any of the following
events occur, namely (i) any reclassification or change of the
outstanding Company Common Shares (other than a subdivision or
combination to which Section 4.14(a) applies), (ii) any
consolidation, merger or combination of the Company with
another Person, or a binding share exchange in respect of all
of the outstanding Company Common Shares as a result of which
holders of Company Common Shares shall be entitled to receive
stock, other securities or other property or assets (including
cash) with respect to or in exchange for such Company Common
Shares or (iii) any sale or conveyance of all or substantially
all of the properties and assets of the Company to any other
Person as a result of which holders of Company Common Shares
shall be entitled to receive stock, other securities or other
property or assets (including cash) with respect to or in
exchange for such Company Common Shares, then the Company or
the successor or purchasing Person, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) providing that each
Debenture, and the Exchange Value thereof, shall be
exchangeable based on the kind and amount of shares of stock,
other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance that the holder would
have received if the Holder had exchanged its Debentures
immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming
such Holder did not exercise his rights of election, if any, as
to the kind or amount of stock, other securities or other
property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination,
sale or conveyance (provided that, if the kind or amount of
stock, other securities or other property or assets (including
cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance is not
the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised (a
"non-electing share"), then for the purposes of this paragraph
the kind and amount of stock, other securities or other
property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination,
sale or conveyance for each non-electing share shall be deemed
to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments
provided for in this Section 4.14. The Company shall cause
notice of the execution of such supplemental indenture to be
mailed to each
30
Holder of Debentures within 20 Business Days after execution
thereof. Failure to deliver such notice shall not affect the
legality or validity of such supplemental indenture. The
provisions of this paragraph shall similarly apply to
successive reclassifications, changes, consolidations, mergers,
combinations, sales and conveyances. If the provisions of this
paragraph applies to any event or occurrence, then the
provisions of Sections 4.14(a) through (g) shall not apply.
Section 4.15. Ownership Limit; withholding. Notwithstanding any
other provision of the Debentures or the instructions contained
herein, no Holder of Debentures shall be entitled to exchange such
Debentures for Company Common Shares to the extent that receipt of
such shares would cause such Holder (together with such Holder's
affiliates) to exceed the ownership limit contained in the Articles
of Amendment and Restatement of the Company as in effect from time
to time.
At the Maturity of the principal of the Debentures, whether at
Stated Maturity or upon earlier redemption or repurchase of
Debentures or otherwise, and as otherwise required by law, the
Operating Partnership may deduct and withhold from the amount of
consideration otherwise deliverable to such Holder the amount
required to be deducted and withheld under applicable law.
Section 4.16. Merger, Consolidation or Sale. Sections 801 and
803 of the Indenture, for purposes of the Debentures, is hereby
modified to include, in addition to provisos (1), (2) and (3) in
such Sections, the following additional proviso:
"if as a result of such transaction the Debentures
become exchangeable into common stock or other securities
issued by a third party, such third party shall fully and
unconditionally guarantee all obligations under the Debentures
and the Indenture."
Section 4.17. Satisfaction and Discharge; Defeasance and
Covenant Defeasance. The provisions of Section 401 of the Indenture
is modified in respect of the Debentures to provide that the
Operating Partnership may not discharge a Holder's rights to
exchange Debentures in accordance with the terms of the Debentures
or to have registered the transfer or exchange of Debentures in
accordance with the terms of the Indenture.
The provisions of Section 402(2) and Section 402(3) of the
Indenture shall be applicable to the Debentures. Notwithstanding the
foregoing, the Debentures shall be deemed to be "Outstanding" for
all purposes relating to the obligations of the Operating
Partnership upon an exchange of Debentures by a Holder thereof.
Section 4.18. Events of Default. Section 501 of the Indenture
is modified for purposes of the Debentures to add the following
Event of Default:
"If the Operating Partnership fails to deliver cash or
Company Common Shares, or any combination thereof, when due
upon an exchange of Debentures, together with any cash due in
lieu of fractional shares, and that failure continues for 10
days."
31
Section 4.19. Modification. Section 902 of the Indenture is
modified for purposes of the Debentures to add, in addition to
clauses (1) through (4) thereunder, the following as requiring the
consent of each Holder of a Debenture for modification or waiver:
"modify the provisions with respect to the Holders'
rights upon a Change in Control in a manner adverse to Holders
of the Debentures, including the obligations of the Operating
Partnership to repurchase the Debentures following a Change in
Control;"
- and -
"adversely affect the Holders' rights contained in the
exchange or repurchase provisions of the Debentures."
Section 4.20. Full and Unconditional Guarantee by the Company.
The provisions of ARTICLE SIXTEEN of the Indenture shall be
applicable to the Debentures.
Section 4.21. Certain Covenants Not Applicable to the
Debentures. The Debentures shall not be entitled to the benefits of
the covenants set forth in Section 1005 and Section 1006 of the
Indenture.
Section 4.22. Calculations in Respect of the Debentures. Except
as otherwise specifically stated herein or in the Debentures, all
calculations to be made in respect of the Debentures shall be the
obligation of the Operating Partnership. All calculations made by
the Operating Partnership or its agent as contemplated pursuant to
the terms hereof and of the Debentures shall be made in good faith
and be final and binding on the Operating Partnership and the
Holders absent manifest error. The Operating Partnership shall
provide a schedule of calculations to the Trustee, and the Trustee
shall be entitled to rely upon the accuracy of the calculations by
the Operating Partnership without independent verification. The
Trustee shall forward calculations made by the Operating Partnership
to any Holder of Debentures upon request.
Section 4.23. Authorized Denominations. The Debentures shall be
issued in denominations of $1,000 and integral multiples thereof and
payments of principal, interest and additional amounts, if any, on
the Debentures shall be made in U.S. dollars.
Section 4.24. Exchange Agent, Paying Agent and Securities
Registrar. The Bank of New York is hereby appointed as Exchange
Agent, Paying Agent and the Security Registrar for the Debentures.
The Security Register for the Debentures will be maintained by the
Security Registrar in the Borough of Manhattan, The City of New
York. The rights, privileges, protections, immunities and benefits
given to the Trustee pursuant to the Indenture, including, without
limitation, its right to be indemnified, are extended to, and shall
be enforceable by, the Trustee in each of its capacities with
respect to the Debentures.
* * *
32
Each of the undersigned has read the conditions relating to the
authentication and delivery of the Securities contained in the Indenture and
the definitions therein relating thereto, has read the certified copy of the
Board Resolutions and has examined the form of the Securities attached
thereto. In the opinion of each of the undersigned, he has made such
examination or investigation as was necessary to enable him to express an
informed opinion as to whether or not such conditions have been complied with
and, in the opinion of each of the undersigned, such conditions have been
complied with. To the best of each of the undersigned's knowledge, no event
which is, or after notice or lapse of time would become, an Event of Default
with respect to the Securities has occurred and is continuing.
Insofar as this Certificate relates to legal matters, it is based, as
provided for in Section 103 of the Indenture, upon the Opinion of Counsel
contemporaneously delivered to the Trustee herewith and relating to the
Securities.
33
IN WITNESS WHEREOF, we have hereunto set our hands this 27th day of
June, 2005.
By: /s/ Jason M. Barnett
----------------------------------
Jason M. Barnett
Executive Vice President,
General Counsel and Secretary
By: /s/ Michael Maturo
----------------------------------
Michael Maturo
Executive Vice President,
Chief Financial Officer
and Treasurer
34
Annex A
[FORM OF DEBENTURE]
A-1