UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
For the transition period from __________________ to __________________
Commission file number: 1-13130 (Liberty Property Trust)
1-13132 (Liberty Property Limited Partnership)
LIBERTY PROPERTY TRUST
LIBERTY PROPERTY LIMITED PARTNERSHIP
(Exact name of registrants as specified in their governing documents)
MARYLAND (Liberty Property Trust) 23-7768996
PENNSYLVANIA (Liberty Property Limited Partnership) 23-2766549
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification Number)
65 Valley Stream Parkway, Suite 100, Malvern, Pennsylvania 19355
(Address of Principal Executive Offices) (Zip Code)
Registrants' Telephone Number, Including Area Code (610)648-1700
Indicate by check mark whether the registrants (1) have filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding twelve (12) months (or for
such shorter period that the registrants were required to file such
reports) and (2) have been subject to such filing requirements for the
past ninety (90) days. YES X NO
On July 29, 1997 41,040,803 Common Shares of Beneficial Interest, par
value $.001 per share, of Liberty Property Trust were outstanding.
LIBERTY PROPERTY TRUST/LIBERTY PROPERTY LIMITED PARTNERSHIP
FORM 10-Q FOR THE PERIOD ENDED JUNE 30, 1997
INDEX
- -----
Part I. Financial Information
- ------------------------------
Item 1. Financial Statements (unaudited) Page
----
Consolidated balance sheet of Liberty Property
Trust at June 30, 1997 and December 31, 1996. 4
Consolidated statement of operations of Liberty
Property Trust for the three months ended June
30, 1997 and June 30, 1996. 5
Consolidated statement of operations of Liberty
Property Trust for the six months ended June 30,
1997 and June 30, 1996. 6
Consolidated statement of cash flows of Liberty
Property Trust for the six months ended June 30,
1997 and June 30, 1996. 7
Notes to consolidated financial statements for
Liberty Property Trust. 8-9
Consolidated balance sheet of Liberty Property
Limited Partnership at June 30, 1997 and
December 31, 1996. 10
Consolidated statement of operations of Liberty
Property Limited Partnership for the three months
ended June 30, 1997 and June 30, 1996. 11
Consolidated statement of operations of Liberty
Property Limited Partnership for the six months
ended June 30, 1997 and June 30, 1996. 12
Consolidated statement of cash flows of Liberty
Property Limited Partnership for the six months
ended June 30, 1997 and June 30, 1996. 13
Notes to consolidated financial statements for
Liberty Property Limited Partnership. 14
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations. 15-19
Part II. Other Information 20-21
- --------------------------
Signatures 22
-2-
- --------------------------
The Private Securities Litigation Reform Act of 1995 provides a "safe
harbor" for forward-looking statements. Certain information included in
this Quarterly Report on Form 10-Q contain statements that are or will
be forward-looking, such as statements relating to acquisitions and
other business development activities, future capital expenditures,
financing sources and availability, and the effects of regulation
(including environmental regulation) and competition. Such forward-
looking information involves important risks and uncertainties that
could significantly affect anticipated results in the future and,
accordingly, such results may differ from those expressed in any
forward-looking statements made by, or on behalf of, the Company. These
risks and uncertainties include, but are not limited to, uncertainties
affecting real estate businesses generally (such as entry into new
leases, renewals of leases and dependence on tenants' business
operations), risks relating to acquisition, construction and development
activities, possible environmental liabilities, risks relating to
leverage and debt service (including availability of financing terms
acceptable to the Company and sensitivity of the Company's operations to
fluctuations in interest rates), the potential for the use of borrowings
to make distributions necessary to qualify as a REIT, dependence on the
primary markets in which the Company's properties are located, the
existence of complex regulations relating to status as a REIT and the
adverse consequences of the failure to qualify as a REIT and the
potential adverse impact of market interest rates on the market price
for the Company's securities.
-3-
CONSOLIDATED BALANCE SHEET OF LIBERTY PROPERTY TRUST
(IN THOUSANDS)
JUNE 30, 1997 DECEMBER 31, 1996
-------------- -----------------
(UNAUDITED)
ASSETS
Real estate:
Land and land improvements $ 192,507 $ 140,196
Buildings and improvements 1,229,326 908,835
Less accumulated depreciation (129,580) (119,151)
---------- ----------
Operating real estate 1,292,253 929,880
Development in progress 100,805 85,628
Land held for development 48,919 44,054
---------- ----------
Net real estate 1,441,977 l,059,562
Cash and cash equivalents 25,050 19,612
Accounts receivable 11,718 8,707
Deferred financing and leasing costs, net of
accumulated amortization (1997, $36,289;
1996, $30,985) 27,606 27,013
Prepaid expenses and other assets 42,392 37,718
---------- ----------
Total assets $1,548,743 $1,152,612
========== ==========
LIABILITIES
Mortgage loans $ 388,030 $ 240,803
Subordinated debentures 146,930 171,214
Lines of credit 296,000 266,692
Accounts payable 9,212 6,294
Accrued interest 6,899 7,411
Dividend payable 18,468 14,248
Other liabilities 34,817 28,923
---------- ----------
Total liabilities 900,356 735,585
Minority interest 66,395 41,495
SHAREHOLDERS' EQUITY
Common shares of beneficial interest, $.001 par value,
200,000,000 shares authorized, 40,909,953 and
31,400,361 shares issued and outstanding as of
June 30, 1997 and December 31, 1996, respectively 40 31
Additional paid-in capital 583,149 370,813
Unearned compensation (1,197) (1,408)
Retained earnings - 6,096
---------- ----------
Total shareholders' equity 581,992 375,532
---------- ----------
Total liabilities and shareholders' equity $1,548,743 $1,152,612
========== ==========
See accompanying notes.
-4-
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY TRUST
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE THREE
MONTHS ENDED MONTHS ENDED
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
REVENUE
Rental $ 39,341 $27,146
Operating expense reimbursement 11,941 8,222
Management fees 158 361
Interest and other (249) 921
-------- -------
Total revenue 51,191 36,650
-------- -------
OPERATING EXPENSES
Rental property expenses 9,276 6,818
Real estate taxes 4,202 2,607
General and administrative 2,295 1,950
Depreciation and amortization 9,318 6,718
-------- -------
Total operating expenses 25,091 18,093
-------- -------
Operating income 26,100 18,557
Premium on debenture conversion - 390
Write off of deferred financing costs 2,566 -
Interest expense 11,329 9,433
-------- -------
Income before minority interest 12,205 8,734
Minority interest 1,250 925
-------- -------
Net income $ 10,955 $ 7,809
======== =======
Net income per common share - primary $ 0.27 $ 0.27
======== =======
Dividends declared per common share $ 0.41 $ 0.40
======== =======
Weighted average number of common shares outstanding 41,116 29,027
======== =======
See accompanying notes.
-5-
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY TRUST
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
SIX SIX
MONTHS ENDED MONTHS ENDED
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
REVENUE
Rental $ 73,982 $ 53,098
Operating expense reimbursement 22,790 17,127
Management fees 311 866
Interest and other 590 2,122
-------- -------
Total revenue 97,673 73,213
-------- -------
OPERATING EXPENSES
Rental property expenses 17,915 14,635
Real estate taxes 7,482 5,172
General and administrative 4,782 3,587
Depreciation and amortization 17,288 13,174
-------- -------
Total operating expenses 47,467 36,568
-------- -------
Operating income 50,206 36,645
Premium on debenture conversion - 390
Write off of deferred financing costs 2,566 -
Interest expense 23,911 18,567
-------- -------
Income before minority interest 23,729 17,688
Minority interest 2,225 1,890
-------- -------
Net income $ 21,504 $ 15,798
======== =======
Net income per common share - primary $ 0.58 $ 0.55
======== =======
Dividends declared per common share $ 0.82 $ 0.80
======== =======
Weighted average number of common shares outstanding 36,972 28,750
======== =======
See accompanying notes.
-6-
CONSOLIDATED STATEMENT OF CASH FLOWS OF LIBERTY PROPERTY TRUST
(UNAUDITED AND IN THOUSANDS)
SIX SIX
MONTHS ENDED MONTHS ENDED
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
OPERATING ACTIVITIES
Net income $ 21,504 $ 15,798
Adjustments to reconcile net income to net cash
provided by operating activities
Depreciation and amortization 17,288 13,174
Amortization of deferred financing costs 4,951 2,321
Minority interest in net income 2,225 1,890
Loss (gain) on sale 1,143 (377)
Noncash compensation 211 250
Changes in operating assets and liabilities:
Accounts receivable (3,011) (2,322)
Prepaid expense and other assets (4,729) 831
Accounts payable 2,918 (592)
Accrued interest on existing debt (510) (357)
Other liabilities 6,461 (824)
--------- ---------
Net cash provided by operating activities 48,451 29,792
--------- ---------
INVESTING ACTIVITIES
Investment in properties (275,700) (65,438)
Investment in development in progress (56,163) (6,306)
Investment in land held for development (4,865) (6,808)
Increase in deferred leasing costs (3,421) (1,893)
--------- ---------
Net cash used in investing activities (340,149) (80,445)
--------- ---------
FINANCING ACTIVITIES
Net proceeds from sale of common stock 191,713 -
Proceeds from mortgage loans 120,473 39,650
Repayments of mortgage loans (6,538) (387)
Proceeds from lines of credit 442,018 77,227
Repayments on line of credit (412,710) (38,650)
Increase in deposits on pending acquisitions (214) 2,156
Increase in deferred financing costs (4,945) (869)
Dividends (29,602) (22,827)
Distributions to partners (3,059) (2,668)
Other - 13
--------- ---------
Net cash provided by financing activities 297,136 53,645
Increase in cash and cash equivalents 5,438 2,992
Cash and cash equivalents at beginning of period 19,612 10,629
--------- ---------
Cash and cash equivalents at end of period $ 25,050 $ 13,621
========= =========
SUPPLEMENTAL DISCLOSURE OF NONCASH TRANSACTIONS
Write-off of fully depreciated property and
deferred costs $ 6,228 $ 650
Acquisition of properties (87,054) -
Disposition of properties 24,970 -
Assumption of mortgage loans 33,292 -
Issuance of operating partnership units 28,792 -
Noncash compensation 673 353
Conversion of subordinated debentures 24,284 16,595
========= =========
See accompanying notes.
-7-
LIBERTY PROPERTY TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
JUNE 30, 1997
NOTE 1 - BASIS OF PRESENTATION
- ------------------------------
The accompanying unaudited consolidated financial statements of Liberty
Property Trust (the "Trust") and its subsidiaries, including Liberty
Property Limited Partnership (the "Operating Partnership") (the Trust,
Operating Partnership and their respective subsidiaries referred to
collectively as the "Company"), have been prepared in accordance with
generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for
complete financial statements and should be read in conjunction with the
consolidated financial statements and notes thereto included in the
Annual Report on Form 10-K of the Trust and the Operating Partnership
for the year ended December 31, 1996. In the opinion of management, all
adjustments (consisting solely of normal recurring adjustments)
necessary for a fair presentation of the financial statements for these
interim periods have been included. The results of interim periods are
not necessarily indicative of the results to be obtained for a full
fiscal year. Certain amounts from prior periods have been restated to
conform to current period presentation.
In February, 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share, which is required to be adopted
on December 31, 1997. At that time, the Company will be required to
change the method currently used to compute earnings per share and to
restate all prior periods. Under the new requirements for calculating
primary earnings per share, the dilutive effect of stock options will be
excluded. The impact of Statement 128 on the calculation of primary and
fully diluted earnings per share for the quarter and the six months
ended June 30, 1997 and 1996 is not expected to be material.
Note 2 - Organization
- ---------------------
The Trust, a self-administered and self-managed real estate investment
trust (a "REIT"), was formed in the State of Maryland on March 28, 1994
and commenced operations on June 23, 1994 upon completion of its initial
public offering (the "Share Offering"). The Trust conducts all of its
operations through the Operating Partnership. At June 30, 1997, the
Trust owned an 89.74% interest in the Operating Partnership as its sole
general partner and a .02% interest as a limited partner. Concurrent
with the Share Offering, the Operating Partnership completed a public
offering of Exchangeable Subordinated Debentures (the "Debentures") due
2001. The Debentures are guaranteed by the Trust.
-8-
The Debentures are exchangeable, at the option of the holder thereof, at
any time prior to maturity, into Common Shares at a rate of one share
for each $20 outstanding principal amount of Debentures, subject to
certain adjustments.
The Company completed a follow-on offering (the "Follow-on Offering") on
March 24, 1997 of 7,500,000 Common Shares. On April 1, 1997, the
overallotment option was exercised, resulting in the issuance of an
additional 750,000 Common Shares.
-9-
CONSOLIDATED BALANCE SHEET OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(IN THOUSANDS)
JUNE 30, 1997 DECEMBER 31, 1996
-------------- -----------------
(UNAUDITED)
ASSETS
Real estate:
Land and land improvements $ 192,507 $ 140,196
Buildings and improvements 1,229,326 908,835
Less accumulated depreciation (129,580) (119,151)
---------- ----------
Operating real estate 1,292,253 929,880
Development in progress 100,805 85,628
Land held for development 48,919 44,054
---------- ----------
Net real estate 1,441,977 l,059,562
Cash and cash equivalents 25,050 19,612
Accounts receivable 11,718 8,707
Deferred financing and leasing costs, net of
accumulated amortization (1997, $36,289;
1996, $30,985) 27,606 27,013
Prepaid expenses and other assets 42,392 37,718
---------- ----------
Total assets $1,548,743 $1,152,612
========== ==========
LIABILITIES
Mortgage loans $ 388,030 $ 240,803
Subordinated debentures 146,930 171,214
Lines of credit 296,000 266,692
Accounts payable 9,212 6,294
Accrued interest 6,899 7,411
Dividend payable 18,468 14,248
Other liabilities 34,817 28,923
---------- ----------
Total liabilities 900,356 735,585
OWNERS' EQUITY
General partner's equity 581,992 375,532
Limited partners' equity 66,395 41,495
---------- ----------
Total owners' equity 648,387 417,027
---------- ----------
Total liabilities and owners' equity $1,548,743 $1,152,612
========== ==========
See accompanying notes.
-10-
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(UNAUDITED AND IN THOUSANDS)
THREE THREE
MONTHS ENDED MONTHS ENDED
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
REVENUE
Rental $ 39,341 $27,146
Operating expense reimbursement 11,941 8,222
Management fees 158 361
Interest and other (249) 921
-------- -------
Total revenue 51,191 36,650
-------- -------
OPERATING EXPENSES
Rental property expenses 9,276 6,818
Real estate taxes 4,202 2,607
General and administrative 2,295 1,950
Depreciation and amortization 9,318 6,718
-------- -------
Total operating expenses 25,091 18,093
-------- -------
Operating income 26,100 18,557
Premium on debenture conversion - 390
Write off of deferred financing costs 2,566 -
Interest expense 11,329 9,433
-------- -------
Net income $ 12,205 $ 8,734
======== =======
Net income allocated to general partner $ 10,955 $ 7,809
Net income allocated to limited partners 1,250 925
======== =======
See accompanying notes.
-11-
CONSOLIDATED STATEMENT OF OPERATIONS OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
SIX SIX
MONTHS ENDED MONTHS ENDED
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
REVENUE
Rental $ 73,982 $53,098
Operating expense reimbursement 22,790 17,127
Management fees 311 866
Interest and other 590 2,122
-------- -------
Total revenue 97,673 73,213
-------- -------
OPERATING EXPENSES
Rental property expenses 17,915 14,635
Real estate taxes 7,482 5,172
General and administrative 4,782 3,587
Depreciation and amortization 17,288 13,174
-------- -------
Total operating expenses 47,467 36,568
-------- -------
Operating income 50,206 36,645
Premium on debenture conversion - 390
Write off of deferred financing costs 2,566 -
Interest expense 23,911 18,567
-------- -------
Net income $ 23,729 $17,688
======== =======
Net income allocated to general partner $ 21,504 $15,798
Net income allocated to limited partner 2,225 1,890
======== =======
-12-
CONSOLIDATED STATEMENT OF CASH FLOWS OF LIBERTY PROPERTY LIMITED PARTNERSHIP
(UNAUDITED AND IN THOUSANDS)
SIX SIX
MONTHS ENDED MONTHS ENDED
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
OPERATING ACTIVITIES
Net income $ 23,729 $ 17,688
Adjustments to reconcile net income to net cash
provided by operating activities
Depreciation and amortization 17,288 13,174
Amortization of deferred financing costs 4,951 2,321
Loss (gain) on sale 1,143 (377)
Noncash compensation 211 250
Changes in operating assets and liabilities:
Accounts receivable (3,011) (2,322)
Prepaid expense and other assets (4,729) 831
Accounts payable 2,918 (592)
Accrued interest on existing debt (510) (357)
Other liabilities 6,461 (824)
--------- ---------
Net cash provided by operating activities 48,451 29,792
--------- ---------
INVESTING ACTIVITIES
Investment in properties (275,700) (65,438)
Investment in development in progress (56,163) (6,306)
Investment in land held for development (4,865) (6,808)
Increase in deferred leasing costs (3,421) (1,893)
--------- ---------
Net cash used in investing activities (340,149) (80,445)
--------- ---------
FINANCING ACTIVITIES
Proceeds from mortgage loans 120,473 39,650
Repayments of mortgage loans (6,538) (387)
Proceeds from lines of credit 442,018 77,227
Repayments on line of credit (412,710) (38,650)
Increase in deposits on pending acquisitions (214) 2,156
Increase in deferred financing costs (4,945) (869)
Capital contributions 191,713 -
Distributions to partners (32,661) (25,495)
Other - 13
--------- ---------
Net cash provided by financing activities 297,136 53,645
Increase in cash and cash equivalents 5,438 2,992
Cash and cash equivalents at beginning of period 19,612 10,629
--------- ---------
Cash and cash equivalents at end of period $ 25,050 $ 13,621
========= =========
SUPPLEMENTAL DISCLOSURE OF NONCASH TRANSACTIONS
Write-off of fully depreciated property and
deferred costs $ 6,228 $ 650
Acquisition of properties (87,054) -
Disposition of properties 24,970 -
Assumption of mortgage loans 33,292 -
Issuance of operating partnership units 28,792 -
Noncash compensation 673 353
Conversion of subordinated debentures 24,284 16,595
========= =========
See accompanying notes.
-13-
LIBERTY PROPERTY LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
JUNE 30, 1997
NOTE 1 - BASIS OF PRESENTATION
- ------------------------------
The accompanying unaudited consolidated financial statements of Liberty
Property Limited Partnership (the "Operating Partnership") and its
direct and indirect subsidiaries have been prepared in accordance with
generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for
complete financial statements and should be read in conjunction with the
consolidated financial statements and notes thereto included in the
Annual Report on Form 10-K of the Trust and the Operating Partnership
for the year ended December 31, 1996. In the opinion of management, all
adjustments (consisting solely of normal recurring adjustments)
necessary for a fair presentation of the financial statements for these
interim periods have been included. The results of interim periods are
not necessarily indicative of the results to be obtained for a full
fiscal year. Certain amounts from prior periods have been restated to
conform to current period presentation.
NOTE 2 - ORGANIZATION
- ---------------------
Liberty Property Trust (the "Trust", and together with the Operating
Partnership referred to as the "Company"), a self-administered and self-
managed real estate investment trust (a "REIT"), was formed in the State
of Maryland on March 28, 1994 and commenced operations on June 23, 1994
upon completion of its initial public offering (the "Share Offering").
The Trust conducts all of its operations through the Operating
Partnership. At June 30, 1997, the Trust owned an a 89.74% interest in
the Operating Partnership as its sole general partner and a .02%
interest as a limited partner. Concurrent with the Share Offering, the
Operating Partnership completed a public offering of Exchangeable
Subordinated Debentures (the "Debentures") due 2001. The Debentures are
guaranteed by the Trust. The Debentures are exchangeable, at the option
of the holder thereof, at any time prior to maturity, into Common Shares
at a rate of one share for each $20 outstanding principal amount of
Debentures, subject to certain adjustments.
The Company completed a follow-on offering (the "Follow-on Offering") on
March 24, 1997 of 7,500,000 Common Shares. On April 1, 1997, the
overallotment option was exercised, resulting in the issuance of an
additional 750,000 Common Shares.
-14-
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
- ------------------------------------------------------------------------
The following discussion compares the activities of the Company for the
three and six months ended June 30, 1997 (unaudited) with the activities
of the Company for the three and six months ended June 30, 1996
(unaudited). As used herein, the term "Company" includes the Trust, the
Operating Partnership and their subsidiaries.
This information should be read in conjunction with the accompanying
consolidated financial statements and notes included elsewhere in this
report.
RESULTS OF OPERATIONS
- ---------------------
For the three and six months ended June 30, 1997 compared to the three
and six months ended June 30, 1996.
- -----------------------------------------------------------------------
Rental revenues increased from $27.1 million to $39.3 million, or by 45%
for the three months ended June 30, 1996 to 1997 and increased from
$53.1 million to $74.0 million, or by 39% for the six months ended June
30, 1996 to 1997. These increases are primarily due to the increase in
the number of properties in operation ("Operating Properties") during
the respective periods. As of June 30, 1996, the Company had 230
Operating Properties and as of June 30, 1997, the Company had 326
Operating Properties. From January 1, 1996 through March 31, 1996 and
from April 1, 1996 through June 30, 1996, the Company acquired or
completed the development on 5 properties and 17 properties,
respectively, for a Total Investment of approximately $18.4 and $61.6
million, respectively. From January 1, 1997 through March 31, 1997 and
from April 1, 1997 through June 30, 1997, the Company acquired or
completed the development on 26 properties and 46 properties,
respectively, for a Total Investment of approximately $158.9 million and
$259.5 million, respectively. The "Total Investment" for a property is
defined as the property's purchase price plus closing costs and
management's estimate, as determined at the time of acquisition, of the
cost of necessary building improvements in the case of acquisitions, or
land costs and land and building improvement costs in the case of
development projects, and where appropriate, other development costs and
carrying costs required to reach rent commencement.
Operating expense reimbursement increased from $8.2 to $11.9 million for
the three months ended June 30, 1996 to 1997 and from $17.1 million to
$22.8 million for the six months ended June 30, 1996 to 1997. This
increase is a result of the reimbursement from tenants for increases in
rental property expenses and real estate taxes. The operating expense
recovery percentage (the ratio of operating expense reimbursement to
rental property expenses and real estate taxes) increased from 87.2% for
the three months ended June 30, 1996 to 88.6% for the three months ended
-15-
June 30, 1997 and from 86.5% for the six months ended June 30, 1996 to
89.7% for the six months ended June 30, 1997, due to the increase in
occupancy.
Rental property and real estate tax expenses increased from $9.4 million
to $13.5 million for the three months ended June 30, 1996 to 1997 and
from $19.8 million to $25.4 million for the six months ended June 30,
1996 to 1997. These increases are due to the increase in the number of
properties owned during the respective periods, partly offset by a
reduction in snow removal and other seasonal operating costs during the
mild 1997 winter compared to the severe 1996 winter.
Property level operating income for the "Same Store" properties
(properties owned as of January 1, 1996) increased from $46.8 million to
$49.2 million for the six months ended June 30, 1996 to 1997, an
increase of 5.2%. This increase is due principally to increases in the
rental rates for the properties and increases in occupancy.
Set forth below is a schedule comparing the property level operating
income for the Same Store properties for the six month periods ended
June 30, 1997 and 1996.
SIX MONTHS ENDED
------------------------------
(IN THOUSANDS)
------------------------------
JUNE 30, 1997 JUNE 30, 1996
-------------- --------------
Rental revenue $51,110 $49,058
Operating expense reimbursement 14,901 15,373
------- -------
66,011 64,431
Rental property expenses 12,103 12,985
Real estate taxes 4,662 4,630
------- -------
Property level operating income $49,246 $46,816
======= =======
General and administrative expenses increased by $345,000 from the three
months ended June 30, 1996 to the comparable period in 1997, and by $1.2
million for the six months ended June 30, 1996 to the comparable period
in 1997, due to the increase in personnel and other related overhead
costs necessitated by the increase in the number of properties owned
during the respective periods.
Depreciation and amortization expense increased from $6.7 million for
the three months ended June 30, 1996 to $9.3 million for the three
months ended June 30, 1997 and from $13.2 million for the six months
ended June 30, 1996 to $17.3 million for the six months ended June 30,
1997. This increase is due to an increase in the number of properties
owned during the respective periods.
Interest expense increased from $9.4 million for the three months ended
June 30, 1996 to $11.3 million for the three months ended June 30, 1997
-16-
and from $18.6 million for the six months ended June 30, 1996 to $23.9
million for the six months ended June 30, 1997. This increase is due to
an increase in the average debt outstanding for the second quarter of
1996 compared to the second quarter of 1997, which equalled $522.9
million and $723.8 million, respectively, partially offset by reduced
interest as a result of the Debenture conversions. Further,
approximately $2.6 million in deferred financing costs were written off
as a result of the termination of the secured Lines of Credit.
As a result of the foregoing, the Company's operating income increased
from $18.6 million for the three months ended June 30, 1996 to $26.1
million for the three months ended June 30, 1997 and increased from
$36.6 million for the six months ended June 30, 1996 to $50.2 million
for the six months ended June 30, 1997. In addition, income before
minority interest for the three months increased by 40%, from $8.7
million for the three months ended June 30, 1996 to $12.2 million for
the three months ended June 30, 1997 and by 34% from $17.7 million for
the six months ended June 30, 1996 to $23.7 million for the six months
ended June 30, 1997.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1997, the Company had cash and cash equivalents of $25.1
million. Working capital at June 30, 1997 was $5.9 million.
Net cash flow provided by operating activities increased from $29.8
million for the six months ended June 30, 1996, to $48.5 million for the
six months ended June 30, 1997. This $18.7 million increase was
primarily due to the cash provided by the additional Operating
Properties in service during the latter period.
Net cash used in investing activities increased from $80.4 million for
the six months ended June 30, 1996, to $340.1 million for the six months
ended June 30, 1997. This increase primarily resulted from increased
acquisition activity in the first six months of 1997, including the
acquisition of a portfolio of 16 properties in the Minneapolis,
Minnesota marketplace, a portfolio of 14 properties in the South
Carolina marketplace and a portfolio of 7 properties in the Detroit,
Michigan marketplace.
Net cash provided by financing activities increased from $53.6 million
for the six months ended June 30, 1996, to $297.1 million for the six
months ended June 30, 1997. This increase was primarily attributable to
the Follow-On Offering and the exercise of the overallotment option
which was completed on March 24, 1997 and April 1, 1997, respectively,
which resulted in the issuance of 8,250,000 Common Shares. The net
proceeds of the offering were approximately $191.7 million.
The Company believes that its undistributed cash flow from operations is
adequate to fund its short-term liquidity requirements.
The Company has funded its long-term liquidity requirements such as
property acquisition and development activities primarily through
secured line of credit facilities (the "Lines of Credit"). During the
-17-
second quarter of 1997, the Company replaced these secured facilities
with a $325.0 million unsecured line of credit (the "Line of Credit").
The interest rate on borrowings under the Line of Credit fluctuates
based upon the Company's leverage levels or ratings from Moody's
Investors Service ("Moody's") and Standard & Poor's ("S&P"). The
initial interest rate for borrowings under the Line of Credit was 125
basis points over LIBOR. On June 23, 1997, Moody's raised its
prospective senior debt rating of the Company to Baa3 from Ba2 and on
July 22, 1997, S&P assigned a BBB- prospective senior debt rating to the
Company. At these ratings, the interest rate for borrowings under the
Line of Credit is 110 basis points over LIBOR.
Periodically, the Company pays down borrowings on the Lines of Credit
with funds from long term capital sources. In 1997, the Company used
$170.0 million of the proceeds from the Follow-on Offering to paydown
the Lines of Credit.
As of June 30, 1997, $388.0 million in mortgage loans were outstanding
with maturities ranging from 1997 to 2013. The interest rates on $353.3
million of mortgage loans are fixed and range from 6% to 9%. Interest
rates on $34.7 million of mortgage loans float with LIBOR or prime, of
which $19.3 million is subject to certain caps. The weighted average
interest rate for the mortgage loans is 7.8%, and the weighted average
life is 7.0 years.
General
The Company expects to incur variable rate debt, including borrowings
under the Line of Credit, from time to time. The Company has entered
into a swap agreement, with a notional amount of $119.0 million, to
hedge against possible fluctuations in interest rates in anticipation of
a debt issuance in 1997 for a five to seven year term. The Company
believes that its existing sources of capital will provide sufficient
funds to finance its continued acquisition and development activities.
In this regard, the Company continues to evaluate its long term capital
sources which generally include the availability of debt financing and
access to equity.
In July 1995, the Company filed a shelf registration with the Securities
and Exchange Commission that enabled the Company to offer up to an
aggregate of $350.0 million of securities, including common stock,
preferred stock and debt (the "Initial Shelf Registration"). On November
27, 1995, the Company completed a follow-on public offering of 7,200,000
common shares resulting in proceeds of $140.4 million.
On October 15, 1996, the Company filed a Registration Statement of
1,000,000 shares to be issued through a Dividend Reinvestment and Share
Purchase Plan.
On February 21, 1997, the Company filed a shelf registration with the
Securities and Exchange Commission that enables the Company to offer up
to an aggregate of $850.0 million of securities, including common stock,
-18-
preferred stock and debt (the "Second Shelf Registration"). On March
24, 1997, the Company completed the Follow-on Offering which resulted in
the issuance of an additional 7,500,000 Common Shares, and on April 1,
1997, the overallotment option was exercised, resulting in the issuance
of an additional 750,000 Common Shares. The issuance of these Common
Shares resulted in net proceeds of $191.7 million. Collectively, the
Initial Shelf Registration and the Second Shelf Registration are
referred to as the "Shelf Registration".
Presently, the Shelf Registration provides Liberty Property Trust and
Liberty Property Limited Partnership with the ability to offer up to
$479.4 million and $400.0 million of securities, respectively.
Calculation of Funds from Operations
Management considers Funds from Operations an appropriate measure of the
performance of an equity REIT. Funds from Operations is defined by
NAREIT as net income or loss (computed in accordance with generally
accepted accounting principles), excluding gains or losses from debt
restructuring and sales of property plus depreciation and amortization
excluding the amortization of deferred financing costs and depreciation
of non-real estate assets. Funds from Operations should not be
considered as an alternative to net income or as an alternative to cash
flow as a measure of liquidity. Funds from Operations for the three and
six months ended June 30, 1997 and 1996 are as follows:
THREE MONTHS ENDED SIX MONTHS ENDED
(IN THOUSANDS) (IN THOUSANDS)
------------------- -------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1997 1996 1997 1996
-------- -------- -------- --------
Net Income $ 10,955 $ 7,809 $ 21,504 $ 15,798
Add Back:
Minority interest 1,250 925 2,225 1,890
Depreciation and amortization 9,209 6,639 17,068 13,027
(Gain) loss on sale 1,143 - 1,143 (377)
Premium on debenture conversion - 390 - 390
Write off of deferred financing costs 2,566 - 2,566 -
======== ======== ======== ========
Funds from operations $ 25,123 $ 15,763 $ 44,506 $ 30,728
======== ======== ======== ========
INFLATION
- ---------
Inflation has remained relatively low during the last three years, and
as a result, it has not had a significant impact on the Company during
this period. The Line of Credit bears interest at a variable rate;
therefore, the amount of interest payable under the Line of Credit will
be influenced by changes in short-term interest rates, which tend to be
sensitive to inflation. To the extent an increase in inflation would
result in increased operating costs, such as in insurance, real estate
taxes and utilities, substantially all of the tenants' leases require
the tenants to absorb these costs as part of their rental obligations.
In addition, inflation also may have the effect of increasing market
rental rates.
-19-
PART II: OTHER INFORMATION
- -----------------------------
Item 1. Legal Proceedings
None
Item 2. Changes in Securities
None
Item 3. Defaults upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
The 1997 Annual Meeting of Shareholders of the Trust was held
on May 21, 1997.
A. Election of Trustees.
At the meeting, management's nominees, Joseph P. Denny, David
L. Lingerfelt and John A. Miller, were elected to fill the three
available positions as Class III trustees. Voting (expressed in number
of shares) was as follows: Mr. Denny: 35,316,771 for, 142,451 against
or withheld and no abstentions or broker non-votes; Mr. Lingerfelt:
35,314,902 for, 144,320 against or withheld and no abstentions or
brokers non-votes; and Mr. Miller: 35,313,809 for, 145,413 against or
withheld and no abstentions or brokers non-votes.
B. Amendment to Declaration of Trust.
At the meeting, the shareholders approved amendments to the
Trust's Amended and Restated Declaration of Trust (as amended, the
"Declaration of Trust") which became effective on May 29, 1997. The
amendments reduced the ownership limitation applicable to the Trust's
shares of beneficial interest, which include the Trust's common shares
as well as any preferred shares of beneficial interest that may be
issued in the future (the "Ownership Limitation"), from 7.5% to 5% and
conformed the legend required to appear on certificates evidencing the
Trust's shares of beneficial interest to reflect the aforementioned
reduction in the Ownership Limitation. The amendments also gave the
Trust's Board of Trustees the authority to grant exemptions from the
Ownership Limitation without the necessity of obtaining the approval of
the Trust's shareholders except in those instances where the aggregate
ownership limitations in the Declaration of Trust designed to protect
the Trust's tax status as a real estate investment trust would be
breached, in which case an exemption from the Ownership Limitation would
continue to require approval by the affirmative vote of not less than
two-thirds of the Trust's shares of beneficial interest then outstanding
and entitled to vote on the matter. Prior to the effective date of the
amendments, any exemption from the Ownership Limitation required the
aforementioned approval of the Trust's shareholders.
-20-
Voting (expressed in number of shares) was as follows:
1. As to the Amendment to the Declaration of Trust of the
Trust to reduce the ownership limitation with respect to shares of
beneficial interest of the Trust from 7.5% to 5.0% and in connection
therewith to conform the restrictive legend appearing on certificates
for shares of beneficial interest of the Trust to reflect such reduction
in the ownership limitation: 27,054,358 for; 2,371,502 against; 190,403
abstained; and 5,842,959 broker non-votes.
2. As to the Amendment to the Declaration of Trust of the
Trust to permit the Board of Trustees of the Trust to grant certain
exemptions from the ownership limitation with respect to shares of
beneficial interest of the Trust without shareholder approval:
26,585,667 for; 2,237,491 against, 204,662 abstained; and 6,431,402
broker non-votes.
C. Amendment to Share Incentive Plan
3. At the meeting, the Trust's shareholders also approved
an amendment to the Trust's Amended and Restated Share Incentive Plan
(the "Plan") which increased the number of the Trust's shares of
beneficial interest available for awards pursuant to the Plan from
2,100,000 to 4,033,535. Voting (expressed in number of shares) was as
follows: 22,432,839 for; 12,230,319 against; 207,621 abstained; and
588,443 broker non-votes.
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
4.1 Form of Senior Indenture by and between the Operating
Partnership and the The First National Bank of Chicago. (Originally
filed as Exhibit 4.1 to the Registration Statement on Form S-3 of the
Trust and the Operating Partnership (Commission File No. 33-94782)).
b. 27 Financial Data Schedule (EDGAR VERSION ONLY)
c. Report on Form 8-K
Report on Form 8-K dated May 21, 1997 filed under Item 5
relating to the acquisition of 7 properties and the probable acquisition
of 6 properties during the period from March 21, 1997 and May 21, 1997.
The report includes Combined Statement of Operating Revenue and Certain
Operating Expenses for a majority of the properties, Pro Forma Condensed
Consolidated Balance Sheets for Liberty Property Trust and Liberty
Property Limited Partnership, and Pro Forma Consolidated Statements of
Operations for Liberty Property Trust and Liberty Property Limited
Partnership.
-21-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
each registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
LIBERTY PROPERTY TRUST
/s/ JOSEPH P. DENNY July 30, 1997
- --------------------------------- --------------------------
Joseph P. Denny Date
President
/s/ GEORGE J. ALBURGER, JR. July 30, 1997
- --------------------------------- --------------------------
George J. Alburger, Jr. Date
Chief Financial Officer
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST, GENERAL PARTNER
/s/ JOSEPH P. DENNY July 30, 1997
- ---------------------------------- -------------------------
Joseph P. Denny Date
President
/s/ GEORGE J. ALBURGER, JR. July 30, 1997
- ---------------------------------- -------------------------
George J. Alburger, Jr. Date
Chief Financial Officer
-22-
EXHIBIT 4.1
LIBERTY PROPERTY LIMITED PARTNERSHIP,
AS OBLIGOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
INDENTURE
DATED AS OF , 1997
___________________________________________
Debt Securities
___________________________________________
TABLE OF CONTENTS
ARTICLE - PAGE
PARTIES 1
RECITALS OF THE COMPANY 1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION 1
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 11
SECTION 103. Form of Documents Delivered to Trustee 12
SECTION 104. Acts of Holders 12
SECTION 105. Notices, etc., to Trustee and Company 14
SECTION 106. Notice to Holders; Waiver 14
SECTION 107. Effect of Headings and Table of Contents 15
SECTION 108. Successors and Assigns 15
SECTION 109. Separability Clause 16
SECTION 110. Benefits of Indenture 16
SECTION 111. Non-Recourse 16
SECTION 112. Governing Law 16
SECTION 113. Legal Holidays 16
ARTICLE TWO - SECURITIES FORMS 17
SECTION 201. Forms of Securities 17
SECTION 202. Form of Trustee's Certificate of Authentication 17
SECTION 203. Securities Issuable in Global Form 17
ARTICLE THREE - THE SECURITIES 18
SECTION 301. Amount Unlimited; Issuable in Series 18
SECTION 302. Denominations 22
SECTION 303. Execution, Authentication, Delivery and Dating 22
SECTION 304. Temporary Securities 24
SECTION 305. Registration, Registration of Transfer and Exchange 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 29
SECTION 307. Payment of Interest; Interest Rights Preserved 30
SECTION 308. Persons Deemed Owners 32
SECTION 309. Cancellation 33
SECTION 310. Computation of Interest 33
ARTICLE FOUR - SATISFACTION AND DISCHARGE 34
SECTION 401. Satisfaction and Discharge of Indenture 34
SECTION 402. Application of Trust Funds 35
ARTICLE FIVE - REMEDIES 35
SECTION 501. Events of Default 35
SECTION 502. Acceleration of Maturity; Rescission and Annulment 37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee 38
SECTION 504. Trustee May File Proofs of Claim 39
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons 39
SECTION 506. Application of Money Collected 40
SECTION 507. Limitation on Suits 40
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest and
Additional Amounts 41
SECTION 509. Restoration of Rights and Remedies 41
SECTION 510. Rights and Remedies Cumulative 41
SECTION 511. Delay or Omission Not Waiver 41
SECTION 512. Control by Holders of Securities 41
SECTION 513. Waiver of Past Defaults 42
SECTION 514. Waiver of Usury, Stay or Extension Laws 42
SECTION 515. Undertaking for Costs 42
ARTICLE SIX - THE TRUSTEE 43
SECTION 601. Notice of Defaults 43
SECTION 602. Certain Rights of Trustee 43
SECTION 603. Not Responsible for Recitals or Issuance of Securities 44
SECTION 604. May Hold Securities 44
SECTION 605. Money Held in Trust 45
SECTION 606. Compensation and Reimbursement 45
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests 45
SECTION 608. Resignation and Removal; Appointment of Successor 46
SECTION 609. Acceptance of Appointment by Successor 47
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business 48
SECTION 611. Appointment of Authenticating Agent 48
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 50
SECTION 701. Disclosure of Names and Addresses of Holders 50
SECTION 702. Reports by Trustee 50
SECTION 703. Reports by Company 50
SECTION 704. The Company to Furnish Trustee Names and Addresses of
Holders 51
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE 51
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions 51
SECTION 802. Rights and Duties of Successor Entity 52
SECTION 803. Officers' Certificate and Opinion of Counsel 52
ARTICLE NINE - SUPPLEMENTAL INDENTURES 52
SECTION 901. Supplemental Indentures Without Consent of Holders 52
SECTION 902. Supplemental Indentures with Consent of Holders 54
SECTION 903. Execution of Supplemental Indentures 55
SECTION 904. Effect of Supplemental Indentures 55
SECTION 905. Conformity with Trust Indenture Act 55
SECTION 906. Reference in Securities to Supplemental Indentures 55
SECTION 907. Notice of Supplemental Indentures 55
ARTICLE TEN - COVENANTS 56
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount
(if any), Interest and Additional Amounts 56
SECTION 1002. Maintenance of Office or Agency 56
SECTION 1003. Money for Securities Payments to Be Held in Trust 58
SECTION 1004. Intentionally Omitted 59
SECTION 1005. Existence 59
SECTION 1006. Maintenance of Properties 59
SECTION 1007. Insurance 59
SECTION 1008. Payment of Taxes and Other Claims 59
SECTION 1009. Provision of Financial Information 60
SECTION 1010. Statement as to Compliance 60
SECTION 1011. Additional Amounts 60
SECTION 1012. Waiver of Certain Covenants 61
ARTICLE ELEVEN - REDEMPTION OF SECURITIES 61
SECTION 1101. Applicability of Article; Redemption to Maintain REIT
Status 61
SECTION 1102. Election to Redeem; Notice to Trustee 62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed 62
SECTION 1104. Notice of Redemption 62
SECTION 1105. Deposit of Redemption Price 64
SECTION 1106. Securities Payable on Redemption Date 64
SECTION 1107. Securities Redeemed in Part 65
ARTICLE TWELVE - SINKING FUNDS 65
SECTION 1201. Applicability of Article 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities 65
SECTION 1203. Redemption of Securities for Sinking Fund 66
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS 66
SECTION 1301. Applicability of Article 66
SECTION 1302. Repayment of Securities 66
SECTION 1303. Exercise of Option 66
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable 67
SECTION 1305. Securities Repaid in Part 68
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE 68
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance 68
SECTION 1402. Defeasance and Discharge 69
SECTION 1403. Covenant Defeasance 69
SECTION 1404. Conditions to Defeasance or Covenant Defeasance 69
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions 71
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES 72
SECTION 1501. Purposes for Which Meetings May Be Called 72
SECTION 1502. Call, Notice and Place of Meetings 72
SECTION 1503. Persons Entitled to Vote at Meetings 73
SECTION 1504. Quorum; Action 73
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings 74
SECTION 1506. Counting Votes and Recording Action of Meetings 75
SECTION 1507. Evidence of Action Taken by Holders 75
SECTION 1508. Proof of Execution of Instruments 75
Liberty Property Limited Partnership, as Obligor
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and this Indenture, dated as of , 1997.
Trust Indenture Act Section Indenture Section
(S) 310 (a) (1) 607
(a) (2) 607
(b) 607, 608
(S) 312 (c) 701
(S) 313 (a) 70
(c) 702
(S) 314 (a) 703
(a) (4) 1011
(c) (1) 102
(c) (2) 102
(e) 102
(S) 315 (b) 601
(S) 316 (a) (last sentence) 101 ("Outstanding")
(a) (1) (A) 502, 512
(a) (1) (B) 513
(b) 508
(S) 317 (a) (1) 503
(a) (2) 504
(S) 318 (a) 111
(c) 111
________________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
Attention should also be directed to Section 318 (c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317
of the 1939 Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
PARTIES
Indenture (this "Indenture"), dated as of ,
1997, by and between LIBERTY PROPERTY LIMITED PARTNERSHIP, a
Pennsylvania limited partnership (the "Company") having its principal
office at 65 Valley Stream Parkway, Malvern, Pennsylvania 19355, and The
First National Bank of Chicago, a national banking association, as
Trustee hereunder (the "Trustee"), having its Corporate Trust Office (as
defined below) at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes debt securities (the "Securities") evidencing its unsecured
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the
rates or formulas, to mature at such times and to have such other
provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper",
as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Acquisition Lines of Credit" means, collectively, any secured lines of
credit of the Company or any Subsidiary, the proceeds of which shall be
used, among other things, to acquire interests, directly or indirectly,
in real estate.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes
imposed on certain Holders and which are owing to such Holders.
("Adjusted Total Assets" as of any date means)
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Annual Service Charge" as of any date means the amount of any interest
expensed during the four consecutive fiscal quarters most recently ended
prior to such date.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place
in connection with which the term is used or in the financial community
of each such place. Whenever successive publications are required to be
made in Authorized Newspapers, the successive publications may be made
in the same or in different Authorized Newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Trustees" means the board of trustees of the Trust, the
executive committee or any committee of that board duly authorized to
act hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of the Trust, certified
by the Secretary or an Assistant Secretary of the Trust to have been
duly adopted by the Board of Trustees and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in that Place of Payment or particular location are
authorized or required by law, regulation or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time
after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Common Shares" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person other than Preferred
Shares.
"Company" means Liberty Property Limited Partnership, a Pennsylvania
limited partnership, until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of and on behalf of the Company by
the Chairman of the Board, the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Trust, as general partner of the Company, and delivered
to the Trustee.
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" FOR ANY PERIOD MEANS
CONSOLIDATED NET INCOME OF THE COMPANY AND ITS SUBSIDIARIES PLUS AMOUNTS
WHICH HAVE BEEN DEDUCTED FOR (A) INTEREST ON DEBT OF THE COMPANY AND ITS
SUBSIDIARIES, (B) PROVISION FOR TAXES OF THE COMPANY AND ITS
SUBSIDIARIES BASED ON INCOME, (C) AMORTIZATION OF DEBT DISCOUNT, (D)
PROVISIONS FOR GAINS AND LOSSES ON PROPERTIES, (E) DEPRECIATION AND
AMORTIZATION, (F) THE EFFECT OF ANY NONCASH CHARGE RESULTING FROM A
CHANGE IN ACCOUNTING PRINCIPLES IN DETERMINING CONSOLIDATED NET INCOME
FOR SUCH PERIOD AND (G) AMORTIZATION OF DEFERRED CHARGES.
"CONSOLIDATED NET INCOME" FOR ANY PERIOD MEANS THE AMOUNT OF NET INCOME
(OR LOSS) OF THE COMPANY AND ITS SUBSIDIARIES FOR SUCH PERIOD DETERMINED
ON A CONSOLIDATED BASIS IN ACCORDANCE WITH GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for
the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European
Communities or (iii) any currency unit (or composite currency) other
than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is
located at One First National Plaza, Suite 0126, Chicago, Illinois
60670, except that for purposes of Section 1002, such term shall mean
the office or agency of the Trustee in the United Kingdom, which office
at the date hereof is located at 27 Leadenhall Street, London EC3A 1AA;
attention: Corporate Trust Administration.
"corporation" includes corporations, associations, companies, real
estate investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"DEBT" OF THE COMPANY OR ANY SUBSIDIARY MEANS ANY INDEBTEDNESS OF THE
COMPANY OR ANY SUBSIDIARY, WHETHER OR NOT CONTINGENT, IN RESPECT OF (I)
BORROWED MONEY EVIDENCED BY BONDS, NOTES, DEBENTURES OR SIMILAR
INSTRUMENTS, (II) INDEBTEDNESS SECURED BY ANY MORTGAGE, PLEDGE, LIEN,
CHARGE, ENCUMBRANCE OR ANY SECURITY INTEREST EXISTING ON PROPERTY OWNED
BY THE COMPANY OR ANY SUBSIDIARY, (III) REIMBURSEMENT OBLIGATIONS IN
CONNECTION WITH ANY LETTERS OF CREDIT ACTUALLY ISSUED OR AMOUNTS
REPRESENTING THE BALANCE DEFERRED AND UNPAID OF THE PURCHASE PRICE OF
ANY PROPERTY EXCEPT ANY SUCH BALANCE THAT CONSTITUTES AN ACCRUED EXPENSE
OR TRADE PAYABLE OR (IV) ANY LEASE OF PROPERTY BY THE COMPANY OR ANY
SUBSIDIARY AS LESSEE WHICH IS REFLECTED ON THE COMPANY'S CONSOLIDATED
BALANCE SHEET AS A CAPITALIZED LEASE IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES; IN THE CASE OF ITEMS OF INDEBTEDNESS
INCURRED UNDER (I) THROUGH (III) ABOVE TO THE EXTENT THAT ANY SUCH ITEMS
(OTHER THAN LETTERS OF CREDIT) WOULD APPEAR AS A LIABILITY ON THE
COMPANY'S CONSOLIDATED BALANCE SHEET IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES, AND ALSO INCLUDES, TO THE EXTENT NOT
OTHERWISE INCLUDED, ANY OBLIGATION BY THE COMPANY OR ANY SUBSIDIARY TO
BE LIABLE FOR, OR TO PAY, AS OBLIGOR, GUARANTOR OR OTHERWISE (OTHER THAN
FOR PURPOSES OF COLLECTION IN THE ORDINARY COURSE OF BUSINESS),
INDEBTEDNESS OF ANOTHER PERSON (OTHER THAN THE COMPANY OR ANY
SUBSIDIARY).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any person, any capital
stock or partnership interest of such person which by the terms of such
capital stock or partnership interest (or by the terms of any security
into which it is convertible or for which it is exchangeable or
exercisable), upon the occurrence of any event or otherwise: (i) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise; (ii) is convertible into or exchangeable or exercisable for
Debt or Disqualified Stock; or (iii) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the
maturity of the relevant series of Securities.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as
the Company shall designate from time to time in an Officer's
Certificate delivered to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time and
the rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the
government of one or more countries other than the United States of
America or by any recognized confederation or association of such
governments.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent
basis; provided, that solely for purposes of any calculation required by
the financial covenants contained herein, "GAAP" shall mean generally
accepted accounting principles as used in the United States on the date
hereof, applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which
issued the Foreign Currency in which the Securities of a particular
series are payable, for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America or such government which issued the Foreign Currency in which
the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or the
specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with
respect to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if
at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more
series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms
of the particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities
for which such Person is Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a
Security which provides for the payment of Additional Amounts pursuant
to Section 1011, includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means, in connection with any optional redemption of
any Securities, the excess, if any, of: (i) the aggregate present value
as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to
the date of redemption) that would have been payable in respect of each
such dollar if such redemption had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the
date notice of such redemption is given) from the respective dates on
which such principal and interest would have been payable if such
redemption had not been made, to the date of redemption; over (ii) the
aggregate principal amount of the Securities being redeemed.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice-President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Trust, as general partner of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel
for the Trust or the Company and who shall be reasonably satisfactory to
the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of Holders for
quorum purposes, and for the purpose of making the calculations required
by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in making
such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined
pursuant to Section 301 as of the date such Security is originally
issued by the Company, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date
of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation
and that shall be deemed outstanding for such purpose shall be equal to
the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 306 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains.
"Preferred Shares" means, with respect to any Person, capital stock or
shares of beneficial interest issued by such Person that is entitled to
a preference or priority over any other capital stock or shares of
beneficial interest issued by such Person upon any distribution of such
Person's assets, whether by dividend or upon liquidation.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or
not a Business Day.
"REINVESTMENT RATE" MEANS THE YIELD ON TREASURY SECURITIES AT A CONSTANT
MATURITY CORRESPONDING TO THE REMAINING LIFE (AS OF THE DATE OF
REDEMPTION, AND ROUNDED TO THE NEAREST MONTH) TO STATED MATURITY OF THE
PRINCIPAL BEING REDEEMED (THE "TREASURY YIELD"), PLUS 0.25%. FOR
PURPOSES HEREOF, THE TREASURY YIELD SHALL BE EQUAL TO THE ARITHMETIC
MEAN OF THE YIELDS PUBLISHED IN THE STATISTICAL RELEASE UNDER THE
HEADING "WEEK ENDING" FOR "U.S. GOVERNMENT SECURITIES -- TREASURY
CONSTANT MATURITIES" WITH A MATURITY EQUAL TO SUCH REMAINING LIFE;
PROVIDED, THAT IF NO PUBLISHED MATURITY EXACTLY CORRESPONDS TO SUCH
REMAINING LIFE, THEN THE TREASURY YIELD SHALL BE INTERPOLATED OR
EXTRAPOLATED ON A STRAIGHT-LINE BASIS FROM THE ARITHMETIC MEANS OF THE
YIELDS FOR THE NEXT SHORTEST AND NEXT LONGEST PUBLISHED MATURITIES. FOR
PURPOSES OF CALCULATING THE REINVESTMENT RATE, THE MOST RECENT
STATISTICAL RELEASE PUBLISHED PRIOR TO THE DATE OF DETERMINATION OF THE
MAKE-WHOLE AMOUNT SHALL BE USED. IF THE FORMAT OR CONTENT OF THE
STATISTICAL RELEASE CHANGES IN A MANNER THAT PRECLUDES DETERMINATION OF
THE TREASURY YIELD IN THE ABOVE MANNER, THEN THE TREASURY YIELD SHALL BE
DETERMINED IN THE MANNER THAT MOST CLOSELY APPROXIMATES THE ABOVE
MANNER, AS REASONABLY DETERMINED BY THE COMPANY.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or
a word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time and the rules
and regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any
time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities of
any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which reports yields on actively traded
United States government securities adjusted to constant maturities, or,
if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably comparable
index which shall be designated by the Company.
"Subsidiary" means a corporation, partnership or limited liability
company, a majority of the outstanding voting stock, partnership
interests or membership interests, as the case may be, of which is owned
or controlled, directly or indirectly, by the Company or by one or more
Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having the voting power for the election of
directors, general partners, managers or trustees, as the case may be,
whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Trust " means Liberty Property Trust, a self-administered and self-
managed Maryland real estate investment trust and sole general partner
of the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one
such Person, "Trustee" as used with respect to the Securities of any
series shall mean only the Trustee with respect to Securities of that
series.
"UNENCUMBERED TOTAL ASSET VALUE" AS OF ANY DATE MEANS THE SUM OF (I) THE
PORTION OF ADJUSTED TOTAL ASSETS ALLOCABLE TO THE COMPANY'S REAL ESTATE
ASSETS AND (II) THE VALUE OF ALL OTHER ASSETS OF THE COMPANY AND ITS
SUBSIDIARIES ON A CONSOLIDATED BASIS DETERMINED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES (BUT EXCLUDING INTANGIBLES AND
ACCOUNTS RECEIVABLE), IN EACH CASE WHICH ARE UNENCUMBERED BY ANY
MORTGAGE, LIEN, CHARGE, PLEDGE OR SECURITY INTEREST.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen
or resident of the United States, a corporation, company or other entity
created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to some matters
and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such Opinion of
Counsel or certificate or representations may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information as to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting
of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary,
by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had
on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate
or affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The ownership of Bearer Securities may also be
proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or other Act
of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event,
at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as
provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification to Holders of
Registered Securities as shall be made with the approval of the Trustee
shall constitute a sufficient notification to such Holders for every
purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any
event, such notice shall be sufficiently given if published in an
Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of
Bearer Securities as shall be given with the approval of the Trustee
shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to any
particular Holder of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall be binding on their successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person,
other than the Parties hereto, any Security Registrar, any Paying Agent,
any Authenticating Agent and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Non-Recourse. Notwithstanding anything contained herein
to the contrary, no recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or coupon
appertaining thereto, or because of any indebtedness evidenced thereby
(including, without limitation, any obligation or indebtedness relating
to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on any Security issued
hereunder), or for any claim based thereon or otherwise in respect
thereof, shall be had (i) against the Trust or any other partner in the
Company, (ii) against any Person which owns an interest, directly or
indirectly, in any partner in the Company or (iii) against any promoter,
as such, or against any past, present or future shareholder, officer,
director or partner, as such, of the Company, the Trust or of any
successor, either directly or through the Company, the Trust or any
successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of the Securities by the Holders thereof and
as part of the consideration for the issue of the Securities. The
Holders of the Securities hereunder acknowledge by the acceptance of the
Securities that their sole remedies under this Indenture for any Default
by the Company in the payment of the principal of, or any premium or
Make-Whole Amount, if any, interest or any amounts due, or claimed to be
due, on any Security, or otherwise, are limited to claims against the
property of the Company as provided in Section 503 hereof.
SECTION 112. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of
the (State of New York.) This Indenture is subject to the provisions
of the TIA that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision
shall apply in lieu hereof), payment of interest or any Additional
Amounts or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as
if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity,
provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity,
as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be
established in one or more indentures supplemental hereto or approved
from time to time by or pursuant to a Board Resolution in accordance
with this Indenture, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such
letters, numbers or other marks of identification or designation and
such legends or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Securities may be listed, or to conform
to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel
engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities or coupons, as evidenced by their execution of such
Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
to Section 611, the Trustee's certificate of authentication shall be
insubstantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By:
------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section
301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be increased or decreased to
reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee
in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 303 or 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant
to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the
Trustee the security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global
Security (i) in the case of a permanent global Security in registered
form, the Holder of such permanent global Security in registered form,
or (ii) in the case of a permanent global Security in bearer form,
Euroclear and/or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of
the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (15) below), if so provided, may be
determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series
shall be payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, Securities of the
series shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, exchange or conversion and
notices or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency
or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any provision or at the
option of a Holder thereof, and the period or periods within which or
the date or dates on which, the price or prices at which, the currency
or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased
(including without limitation whether, and the extent to which, the
premium shall be payable in connection therewith), in whole or in part,
pursuant to such obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall
be denominated;
(12) whether the amount of payments of principal of (and premium or
Make- Whole Amount, if any) or interest, if any, on the Securities of
the series may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of the
series are to be payable, at the election of the Company, or a Holder
thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may
be exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depositary for such
series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form
and/or terms of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of
the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(23) the terms and conditions, if any, upon which such Securities may
be subordinated to other indebtedness of the Company;
(24) the terms and conditions, if any, for securing all or any portion
of the indebtedness evidenced by the Securities of the series; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board
Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary
or an Assistant Secretary of the Company on behalf of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the
Securities of any series, the Registered Securities of such series,
other than Registered Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of such series,
other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed by the
Chairman of the Board, and President or one of the Executive Vice
Presidents, and the Chief Financial Officer of the Trust, as general
partner of the Company. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trust shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and
delivery of such Securities and did not hold such offices at the date of
such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided further that, unless
otherwise specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as
the case may be, in the form set forth in Exhibit A-1 to this Indenture
or such other certificate as may be specified with respect to any series
of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is
delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of
this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to
be delivery in connection with its original issuance of such beneficial
owner's interest in such permanent global Security. Except as permitted
by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured
have been detached and canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate or formula, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive,
and (subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,
(i) an Opinion of Counsel complying with Section 102 and stating
that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an
Opinion of Counsel or an Officers' Certificate otherwise required
pursuant to the preceding paragraph at the time of issuance of each
Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be
delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears
on such Security or Security to which such coupon appertains a
certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of
this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon
Company Order, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation
of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered
Security; and provided further that a definitive Bearer Security shall
be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities
issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in
global form, then such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they
may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date, such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time
to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and
of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for
any such temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered form,
or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary global Security held for its account then to be exchanged,
each in the form set forth in Exhibit A-2 to this Indenture or in such
other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange
for a portion of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case
may be, a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to
Section 301), dated no earlier than 15 days prior to the Exchange Date,
copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such
Person takes delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global Security
shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section 301,
interest payable on a temporary global Security on an Interest Payment
Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and CEDEL on such Interest
Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the
case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form
set forth as Exhibit A-1 to this Indenture (or in such other forms as
may be established pursuant to Section 301). Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the
preceding two paragraphs of this Section 304(b) and of the third
paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security
with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal
or interest owing with respect to a beneficial interest in a temporary
global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL
and not paid as herein provided shall be returned to the Trustee prior
to the expiration of two years after such Interest Payment Date in order
to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment
a register for each series of Securities (the registers maintained in
such office or in any such office or agency of the Company in a Place of
Payment being herein sometimes referred to collectively as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee, at
its Corporate Trust Office, is hereby initially appointed "Security
Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security Register at
all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, bearing a number
not contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination
or denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at any such office or agency. Whenever any
such Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled
to receive. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be
issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such permitted
exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the
face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying
Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office
or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business
at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for
any permanent global Security is "DTC", then, unless the terms of such
global Security expressly permit such global Security to be exchanged in
whole or in part for definitive Securities, a global Security may be
transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
selected or approved by the Company or to a nominee of such successor to
DTC. If at any time DTC notifies the Company that it is unwilling or
unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act if so required by applicable law or
regulation, the Company shall appoint a successor depositary with
respect to such global Security or Securities. If (x) a successor
depositary for such global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (y) an
Event of Default has occurred and is continuing and the beneficial
owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities
advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any
time that all Outstanding Securities (but not less than all) of any
series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities,
then the Company shall execute, and the Trustee shall authenticate and
deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial owner
of an interest in a permanent global Security is otherwise entitled to
exchange such interest for Securities of such series and of like tenor
and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have
been given, then without unnecessary delay but in any event not later
than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver
definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent
global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered
for exchange by DTC or such other depositary as shall be specified in
the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further that no
Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location
in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the
Company or the Security Registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company
and the Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or
1305 not involving any transfer.
The Company, or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period
beginning at the opening of business 15 days before selection of the
Securities to be redeemed under Section 1103 and ending at the close of
business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption
and (B) if such Securities are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii)
to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to
be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption,
or (iv) to issue, register the transfer of or exchange any Security
which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Company, together with, in
proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of
them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee
that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon
appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost
or stolen coupon appertains, pay such Security or coupon; provided,
however, that payment of principal of (and premium or Make-Whole Amount,
if any), any interest on and any Additional Amounts with respect to,
Bearer Securities shall, except as otherwise provided in Section 1002,
be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any
interest on Bearer Securities shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its coupons, if any, or the destroyed, lost
or stolen coupon shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, interest on any Registered Security
that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest on
any Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 308, to the address
of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL,
as the case may be, with respect to that portion of such permanent
global Security held for its account by Cede & Co. or the Common
Depositary, as the case may be, for the purpose of permitting such party
to credit the interest received by it in respect of such permanent
global Security to the accounts of its participants for the benefit of
the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by
the Company at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the
date of the proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper
in each place of payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon
for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Security or
coupon be overdue, and none of the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of
the Company, or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary,
as a Holder, with respect to such global Security or impair, as between
such depositary, its participants and owners of beneficial interests in
such global Security, the operation of customary practices governing the
exercise of the rights of such depositary (or its nominee) as Holder of
such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration
of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and
coupons surrendered directly to the Trustee for any such purpose shall
be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and
all Securities so delivered shall be promptly canceled by the Trustee.
If the Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same
are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this
Indenture. Canceled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of
such destruction to the Company, unless by the Company Order, the
Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to
any series of Securities specified in such Company Request (except as to
any surviving rights of registration of transfer or exchange of
Securities of such series herein expressly provided for and any right to
receive Additional Amounts, as provided in Section 1011), and the
Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when,
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306,
(iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense of the Company, and the Company, in the case of
(i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series
are payable, sufficient to pay and discharge the entire indebtedness on
such Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium or Make-Whole
Amount, if any) and interest, and any Additional Amounts with respect
thereto, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with. Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee and any predecessor Trustee under Section 606,
the obligations of the Company to any Authenticating Agent under Section
611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and Additional
Amounts for whose payment such money has deposited with or received by
the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any
one of the following events (whatever the reason for such Event of
Default and whether or not it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the making of any sinking fund payment when and as due
by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that
series, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company, or under any mortgage, indenture or other
instrument of the Company (including a default with respect to
Securities of any series other than that series) under which there may
be issued or by which there may be secured any indebtedness of the
Company (or by any Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly responsible or liable as
obligor or guarantor on a full recourse basis) whether such indebtedness
now exists or shall hereafter be created, which default shall constitute
a failure to pay an aggregate principal amount exceeding ($10,000,000)
of such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in
such indebtedness in an aggregate principal amount exceeding
($10,000,000) becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there shall
have been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of that series, a
written notice specifying such default and requiring the Company to
cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its property, or
(C) orders the liquidation of the Company or any Significant
Subsidiary, and the order or decree remains unstayed and in effect for
90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11
U.S. Code or any similar Federal or State law for the relief of debtors
and the term "Custodian" means any receiver, trustee, assignee,
liquidator or other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing (other than an Event of Default
specified in clause (6) or (7) of Section 501 that occurs with respect
to the Company), then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal of (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be specified in the terms thereof), and premium
(if any) and accrued interest on, the Securities of that series to be
due and payable immediately, by a notice in writing to the Company, (and
to the Trustee if given by the Holders), and upon any such declaration
such principal, premium (if any), and accrued interest or specified
portion thereof shall become immediately due and payable. In the event
of a declaration of acceleration because an Event of Default set forth
in clause (5) of Section 501 has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and
annulled if the event of default triggering such Event of Default
pursuant to clause (5) along with any other events of default that have
been triggered by the Event of Default (whether or not a notice or
declaration of acceleration shall have been given by the holders of the
relevant indebtedness) shall be remedied or cured by the Company and/or
the relevant Subsidiary or waived by the holders of the relevant
indebtedness within 60 days after the declaration of acceleration with
respect thereto. If an Event of Default specified in clause (6) or (7)
of Section 501 occurs with respect to the Company, the principal of (or
specified portion thereof), premium, if any, and accrued interest on the
Securities of all series then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that series
and any related coupons,
(B) the principal of (and premium or Make-Whole Amount, if
any, on) any Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest thereon
at the rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its
Maturity, then the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of such
series and coupons, the whole amount then due and payable on such
Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium or Make-Whole Amount, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon
any overdue installments of interest or Additional Amounts, if any, at
the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, or any other
obligor upon such Securities of such series and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of
the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal, premium or Make-Whole Amount, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities of such series and coupons to
make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel, and any other amounts due the Trustee
or any predecessor Trustee under Section 606. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder of a Security or coupon any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the Securities
or coupons or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium or
Make-Whole Amount, if any) or interest and any Additional Amounts, upon
presentation of the Securities or coupons, or both, as the case may be,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and any Additional Amounts payable, in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any), interest and
Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights
of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium or
Make-Whole Amount, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such Security or
payment of such coupon on the respective due dates expressed in such
Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
the Company, the Trustee and the Holders of Securities and coupons
shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right
or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to
the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit
of any undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest on
any Security on or after the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to the Securities of any series,
the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest on or
any Additional Amounts with respect to any Security of such series, or
in the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series;
and provided further that in the case of any default or breach of the
character specified in Section 501(4) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until
at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Trustees may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee. In case an Event of Default
with respect to the Securities has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to the Securities such
of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the Company and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities, coupons, or any prospectus
pursuant to which the Securities are offered except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner
or pledgee of Securities and coupons and, subject to TIA Sections 310(b)
and 311, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder as mutually agreed upon (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee, its directors, officers and
employees, and any predecessor Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its own part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any
coupons.
The provisions of this Section shall survive the termination of this
Indenture
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and shall have
a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company by or pursuant to a Board Resolution may remove the Trustee
and appoint a successor Trustee with respect to all Securities, or (ii)
subject to TIA Section 315(e), any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance or such appointment,
become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner hereinafter provided,
the resigning or removed Trustee or any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities
in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of
its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless
to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto, pursuant to Article Nine hereof, wherein
each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co- trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities or coupons so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities or coupons.
In case any Securities or coupons shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate
and deliver such Securities or coupons, in either its own name or that
of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption or repayment thereof, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of
the Trustee, a copy of which instrument shall be promptly furnished to
the Company.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the
laws of the United States of America or of any State or the District of
Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities.
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time
an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may
at any time terminate the agency of an Authenticating Agent by giving
written notice of termination to such Authenticating Agent and the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
the Trustee for such series may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall give notice of such
appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon,
in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially
in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
------------------------------
as Authenticating Agent
By:
------------------------------
as Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the disclosure
of any information as to the names and addresses of the Holders of
Securities in accordance with TIA Section 312, regardless of the source
from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a
request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in TIA Section 313(c) a
brief report dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or if the Company is not required to file
information, documents or reports pursuant to either of such Sections,
then it will file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 704. The Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular
Record Date, or if there is no Regular Record Date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, provided, however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company
may consolidate with, or sell, lease or convey all or substantially all
of its assets to, or merge with or into any other entity, provided that
in any such case, (1) either the Company shall be the continuing entity,
or the successor entity shall be an entity organized and existing under
the laws of the United States or a State thereof and such successor
entity shall expressly assume the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to Section
1011) on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by
supplemental indenture, complying with Article Nine hereof, satisfactory
to the Trustee, executed and delivered to the Trustee by such entity and
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any
Subsidiary as a result thereof as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed
to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor
entity thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Company to
the Trustee for authentication, and any Securities which such successor
entity thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Securities of the same series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section
801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any
such consolidation, merger, sale, lease or conveyance, and the
assumption by any successor entity, complies with the provisions of this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of such series); provided, however, that in respect of
any such additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of that
or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders of Securities and any related
coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts pursuant
to Section 1011 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies
in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof, (or, in the
case of redemption or repayment at the option of the Holder, on or after
the Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of
any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after the
execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the
manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount
(if any), Interest and Additional Amounts. The Company covenants and
agrees for the benefit of the Holders of each series of Securities that
it will duly and punctually pay the principal of (and premium or
Make-Whole Amount, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with
the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due
on and any Additional Amounts payable in respect of Bearer Securities on
or before Maturity, other than Additional Amounts, if any, payable as
provided in Section 1011 in respect of principal of (or premium or
Make-Whole Amount, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may
be paid by check to the registered Holder of the Registered Security or
other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or
surrendered for payment or conversion, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain: (A)
in the Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities
of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of
that series and related coupons may be presented or surrendered for
payment or conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1011) or conversion;
provided, however, that if the Securities of that series are listed on
the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series
in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location,
and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts
payable on Bearer Securities of that series pursuant to Section 1011) or
conversion at the offices specified in the Security, in London, England,
and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the
Company hereby appoint the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however,
that, if the Securities of a series are payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security
(including any Additional Amounts payable on Securities of such series
pursuant to Section 1011) shall be made at the office of the Company's
Paying Agent in the Borough of Manhattan, The City of New York, if (but
only if) payment in Dollars of the full amount of such principal,
premium or Make-Whole Amount, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in accordance with the requirements set
forth above for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office
or agency. Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities, the
Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at
its Corporate Trust Office as Paying Agent in such city and as its agent
to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such
series of Securities, or as so required, at least one exchange rate
agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on or Additional Amounts in respect of, any
of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any Securities of that
series, deposit with a Paying Agent a sum (in the currency or
currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal
(and premium or Make-Whole Amount, if any) or interest or Additional
Amounts, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest or
Additional Amounts and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same terms as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium or
Make-Whole Amount, if any) or interest on, or any Additional Amounts in
respect of, any Security of any series and remaining unclaimed for two
years after such principal (and premium or Make-Whole Amount, if any),
interest or Additional Amounts has become due and payable shall be paid
to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in respect of,
any Security, without interest thereon, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money
remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Intentionally Omitted.
SECTION 1005. EXISTENCE. SUBJECT TO ARTICLE EIGHT, THE COMPANY WILL DO
OR CAUSE TO BE DONE ALL THINGS NECESSARY TO PRESERVE AND KEEP IN FULL
FORCE AND EFFECT ITS EXISTENCE, RIGHTS (BY PARTNERSHIP AGREEMENT AND
STATUTE) AND FRANCHISES; PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT
BE REQUIRED TO PRESERVE ANY RIGHT OR FRANCHISE IF IT DETERMINES THAT THE
PRESERVATION THEREOF IS NO LONGER DESIRABLE IN THE CONDUCT OF ITS
BUSINESS AND THAT THE LOSS THEREOF IS NOT DISADVANTAGEOUS IN ANY
MATERIAL RESPECT TO THE HOLDERS.
SECTION 1006. MAINTENANCE OF PROPERTIES. THE COMPANY WILL CAUSE ALL OF
ITS MATERIAL PROPERTIES USED OR USEFUL IN THE CONDUCT OF ITS BUSINESS OR
THE BUSINESS OF ANY SUBSIDIARY TO BE MAINTAINED AND KEPT IN GOOD
CONDITION, REPAIR AND WORKING ORDER AND SUPPLIED WITH ALL NECESSARY
EQUIPMENT AND WILL CAUSE TO BE MADE ALL NECESSARY REPAIRS, RENEWALS,
REPLACEMENTS, BETTERMENTS AND IMPROVEMENTS THEREOF, ALL AS IN THE
JUDGMENT OF THE COMPANY MAY BE NECESSARY SO THAT THE BUSINESS CARRIED ON
IN CONNECTION THEREWITH MAY BE PROPERLY AND ADVANTAGEOUSLY CONDUCTED AT
ALL TIMES; PROVIDED, HOWEVER, THAT THE COMPANY AND ITS SUBSIDIARIES
SHALL NOT BE PREVENTED FROM SELLING OR OTHERWISE DISPOSING OF FOR VALUE
ITS PROPERTIES IN THE ORDINARY COURSE OF ITS BUSINESS.
SECTION 1007. INSURANCE. THE COMPANY WILL, AND WILL CAUSE EACH OF ITS
SUBSIDIARIES TO, KEEP ALL OF ITS INSURABLE PROPERTIES INSURED AGAINST
LOSS OR DAMAGE AT LEAST EQUAL TO THEIR THEN FULL INSURABLE VALUE WITH
INSURERS OF RECOGNIZED RESPONSIBILITY AND HAVING AN A.M. BEST POLICY
HOLDER'S RATING OF NOT LESS THAN A-:V.
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS. THE COMPANY WILL PAY
OR DISCHARGE OR CAUSE TO BE PAID OR DISCHARGED, BEFORE THE SAME SHALL
BECOME DELINQUENT, (1) ALL TAXES, ASSESSMENTS AND GOVERNMENTAL CHARGES
LEVIED OR IMPOSED UPON IT OR ANY SUBSIDIARY OR UPON THE INCOME, PROFITS
OR PROPERTY OF THE COMPANY OR ANY SUBSIDIARY, AND (2) ALL LAWFUL CLAIMS
FOR LABOR, MATERIALS AND SUPPLIES WHICH, IF UNPAID, MIGHT BY LAW BECOME
A LIEN UPON THE PROPERTY OF THE COMPANY OR ANY SUBSIDIARY; PROVIDED,
HOWEVER, THAT THE COMPANY SHALL NOT BE REQUIRED TO PAY OR DISCHARGE OR
CAUSE TO BE PAID OR DISCHARGED ANY SUCH TAX, ASSESSMENT, CHARGE OR CLAIM
WHOSE AMOUNT, APPLICABILITY OR VALIDITY IS BEING CONTESTED IN GOOD FAITH
BY APPROPRIATE PROCEEDINGS OR FOR WHICH THE COMPANY HAS SET APART AND
MAINTAINS AN ADEQUATE RESERVE.
SECTION 1009. Provision of Financial Information. The Company shall
file with the Trustee, promptly after filing with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act. The Company shall also comply with the other
provisions of Section 314(a) of the TIA.
So long as any Securities remain outstanding, the Trust shall cause its
annual reports to stockholders (containing audited financial
statements), and any other financial reports furnished by it to
stockholders to be mailed to the Holders at their addresses appearing in
the Securities Register.
SECTION 1010. Statement as to Compliance. The Company will, in
accordance with Section 314 of the TIA, deliver to the Trustee, within
120 days after the end of each fiscal year, a brief certificate from the
principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the
nature and status thereof. For purposes of this Section 1010, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1011. Additional Amounts. If any Securities of a series
provide for the payment of Additional Amounts, the Company will pay to
the Holder of any Security of such series or any coupon appertaining
thereto Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any
context except in the case of Section 502(1), the payment of the
principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention
is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series will not
bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each
date of payment of principal and any premium or interest if there has
been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if
other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without withholding
for or on account of any tax, assessment or other governmental charge
described in the Securities of the series. If any such withholding
shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to
such Holders of Securities of that series or related coupons and the
Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. If the Trustee or any
Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall
be entitled (i) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall
have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a
series or related coupons without withholding or deductions until
otherwise advised. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or
omitted by any of them or in reliance on any Officers' Certificate
furnished pursuant to this Section or in reliance on the Company's not
furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set
forth in Sections 1005 to 1009, inclusive, if before or after the time
for such compliance the Holders of at least a majority in principal
amount of all outstanding Securities of such series, by Act of such
Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article; Redemption to Maintain REIT
Status.
(a) Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
(b) The Company shall redeem all or a portion of the Securities of any
series as necessary to comply with any requirement for the Trust's
continued qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by or pursuant
to a Board Resolution. In case of any redemption at the election of the
Company of all or less than all of the Securities of any series, the
Company shall, at least 45 days prior to the giving of the notice of
redemption in Section 1104 (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series issued on the same day with
the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series
issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of
that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period
is specified by the terms of such series established pursuant to Section
301, to each Holder of Securities to be redeemed, but failure to give
such notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date unless the Company shall default
in the payment of the Redemption Price and any accrued interest thereon,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any, or for
conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the
Company and the Trustee for such series and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or
rate, and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one Business Day
prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) sufficient to pay on the Redemption Date
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together
with accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided
further that, except as otherwise provided with respect to Securities
convertible into Common Shares or Preferred Shares, installments of
interest on Registered Securities whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons, or
the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of
those coupons.
If any Security called for redemption by the Company shall not be so
paid upon surrender thereof for redemption by reason of a failure to
comply with Section 1105, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption
Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301
for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by
the terms of any Securities of any series, the cash amount of any
mandatory sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of
such series with all unmatured coupons appertaining thereto and (2)
apply as a credit Securities of such series which have been redeemed
whether at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by
the terms of such Securities, or which have otherwise been acquired by
the Company; provided that such Securities so delivered or applied as a
credit have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment
for the series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of such in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the securities of such
series) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section
1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company
shall thereupon be obligated to pay the amount therein specified. Not
less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of an at the expense of
the Company in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities,
be repaid at a price equal to the principal amount thereof, together
with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants
that at least one Business Day prior to the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to
pay the principal (or, if so provided by the terms of the Securities of
any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof, as the case may be, to be repaid
on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option
to Elect Repayment" form on the reverse of such Securities. In order
for any Security to be repaid at the option of the Holder, the Trustee
must receive at the Place of Payment therefor specified in the terms of
such Security (or at such other place or places of which the Company
shall from time to time notify the Holders of such Securities) not
earlier than 60 days nor later than 30 days prior to the Repayment Date
(1) the Security so providing for such repayment together with the
"Option to Elect Repayment" form on the reverse thereof duly completed
by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal amount of
the Security to be repaid, the CUSIP number, if any, or a description of
the tenor and terms of the Security, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the
Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the
date of such telegram, telex, facsimile transmission or letter;
provided, however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed
are received by the Trustee by such fifth Business Day. If less than
the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid,
must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part
if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of
the repayment option by the Holder shall be irrevocable unless waived by
the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series that provide for repayment at the
option of the Holders thereof shall have been surrendered as provided in
this Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portion thereof, as the case may be,
to be repaid shall become due and payable and shall be paid by the
Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except
to the extent provided below, shall be void. Upon surrender of any such
Security for repayment in accordance with such provisions, together with
coupons, if any, appertaining thereto maturing after the Repayment Date,
the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, on the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301,
only upon presentation and surrender of such coupons; and provided
further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment
Date shall be payable (but with interest thereon, unless the Company
shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close
of business on the relevant Regular Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount payable
therefor as provided in Section 1302 an amount equal to the face amount
of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be
furnished to it such security or indemnity as they may require to save
it and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section
301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof by reason of a failure by the
Company to comply with this Section 1304, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of
the Company, a new Registered Security or Securities of the same series,
of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities
of or within a series under Section 1402 or (b) covenant defeasance of
the Securities of or within a series under Section 1403, then the
provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons
appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities
and any coupons appertaining thereto upon compliance with the conditions
set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of
the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have
been discharged from its obligations with respect to such Outstanding
Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any coupons appertaining
thereto, which shall thereafter be deemed to be "Outstanding" only for
the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of
its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding
Securities and any coupons appertaining thereto to receive, solely from
the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities and
any coupons appertaining thereto when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections
305, 306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1011, (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with
respect to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its
obligations under Sections 1005 to 1009, inclusive and, if specified
pursuant to Section 301, its obligations under any other covenant, with
respect to such Outstanding Securities and coupons appertaining thereto
on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and
any coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1005 to 1009, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth
in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any Section
or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or
an Event of Default under Section 501(4) or 501(8) or otherwise, as the
case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto shall
be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the
basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment
of principal of (and premium or Make-Whole Amount, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, without consideration of any reinvestment of such principal
and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium or Make-Whole Amount, if any)
and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a
party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6)
and 501(7) are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied
with and an Opinion of Counsel to the effect that either (i) as a result
of a deposit pursuant to subsection (a) above and the related exercise
of the Company's option under Section 1402 or Section 1403 (as the case
may be), registration is not required under the Investment Company Act
of 1940, as amended, by the Company with respect to the trust funds
representing such deposit or by the Trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section
301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including
the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 1405, the "Trustee")
pursuant to Section 1404 in respect of any Outstanding Securities of any
series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto and this Indenture, to
the payment, either directly or through any Paying Agent as the Trustee
may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the
terms of such Security to receive payment in a currency or currency unit
other than that in which the deposit pursuant to Section 1404(a) has
been made in respect of such Security, or (b) a Conversion Event occurs
in respect of the currency or currency unit in which the deposit
pursuant to Section 1404(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium or Make-Whole Amount, if any),
and interest, if any, on such Security as the same becomes due out of
the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited
in respect of such Security into the currency or currency unit in which
such Security becomes payable as a result of such election or Conversion
Event based on the applicable market exchange rate for such currency or
currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or
currency unit in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding
Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or Government Obligations (or
other property and any proceeds therefrom) held by it as provided in
Section 1404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from
time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding
Securities of any series, shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities
of a series, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened
at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which
shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or
taken by the Holders of a specific percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other act that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such
series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any Series shall
be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the fact, setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section
1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and
another to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein
stated.
SECTION 1507. Evidence of Action Taken by Holders. Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Holders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof and
execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to Article
Six, the execution of any instrument by a Holder or his agent or proxy
may be proved in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its sole general partner
By:
------------------------------
Title:
ATTEST
By:
------------------------------
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
------------------------------
Title: Vice President
ATTEST
By:
------------------------------
Title: Trust Officer
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United
States, domestic companies, domestic corporations or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United
States Treasury Regulations Section 2.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or
(b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise Liberty Property
Limited Partnership or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United
States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)), this is to
further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance
with your Operating Procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may
be assumed that this certification applies as of such date.
This certificate excepts and does not relate to U.S.$ of such
interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an
interest in a Permanent Global Security or an exchange for and delivery
of definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which
this certificate is or would be relevant, we irrevocably authorize you
to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
(o be dated no earlier than the 15th day prior to
(i) the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange Date,
as applicable)
(Name of Person Making Certification)
- ------------------------------
(Authorized Signatory)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
(Insert title or sufficient description of Securities to be delivered)
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to
a portion of the principal amount set forth below (our "Member
Organizations") substantially in the form attached hereto, as of the
date hereof, (U.S. $) principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents
of the United States, domestic companies, domestic corporations or any
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"),
(ii) is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or
(b), each such financial institution has agreed, on its own behalf or
through its agent, that we may advise Liberty Property Limited
Partnership or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of
the temporary global Security representing the above captioned
Securities excepted in the above-referenced certificates of Member
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion
of the part submitted herewith for exchange (or, if relevant, collection
of any interest) are no longer true and cannot be relied upon as of the
date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which
this certificate is or would be relevant, we irrevocably authorize you
to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
(To be dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable)
(Morgan Guaranty Trust Company of New York, Brussels Office,) as
Operator of the Euroclear System (Cedel S.A.)
By: ------------------------------
Exhibit B
OFFICERS' CERTIFICATE
We, , Chief Operating Officer, and
, Chief Financial Officer, respectively, of Liberty Property Trust, the
General Partner (the "General Partner") of Liberty Property Limited
Partnership (the "Company"), pursuant to Section 301 of the Indenture
dated as of 19 between the Company and The First
National Bank of Chicago, as Trustee (the "Indenture"), hereby certify
that a series of Securities with the following terms has been
established by a Board Resolution and has been denominated
Notes due (the "Notes"), and we further certify as follows with respect
to the Notes (unless otherwise defined herein, capitalized terms shall
have the meanings set forth in the Indenture):
1. the title of the Notes shall be " Notes due ."
The Notes constitute a series of Securities as defined in the
Indenture. (The Notes shall be issuable as Registered Securities in
permanent global form only in denominations of $1,000 or any integral
multiple thereof;)
2. the maximum aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture shall be $
(except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of other Notes pursuant to
Section 304, 305, 306, 906, 1107 or 1305 of the Indenture);
3. the principal amount of the Notes shall be payable on ,
subject to the provisions of the Indenture and the Notes;
4. interest will accrue from , 1997. The Notes will bear
interest at % per annum, payable in the manner and on the
dates set forth in the attached form of Notes;
5. the Corporate Trust Office of The First National Bank of Chicago is
appointed the principal paying agent, transfer agent, and registrar for
the Notes and for the purpose mentioned in Section 1002 of the
Indenture. The Notes may be presented for payment at maturity or
redemption at such Corporate Trust Office, or at any other agency as
may be appointed by the Company from time to time in The City of New
York;
6. (the provisions of Sections 1402 and 1403 of the Indenture with
regard to defeasance and discharge and covenant defeasance,
respectively, shall be applicable to the Notes without modification);
7. (the Notes may be redeemed at any time at the option of the
Company, in such manner and upon the terms set forth in the attached
form of Notes and the Indenture;)
8. (the Notes will be represented by one or more Global Notes as
described under the caption "Description of the Notes--Book Entry
System" in the Company's Prospectus Supplement dated ,
1997 with respect to the offering of the Notes (the "Prospectus
Supplement")(except that, in certain limited circumstances, the Company
may issue Notes in definitive form to owners of beneficial interests in
a Global Note, as described in the above-referenced section of the
Prospectus Supplement);)
9. the Notes shall have such other terms and conditions as are set
forth in the form of the Notes. The Notes shall be subject to the
provisions of the Indenture; and
10. the attached form of the Notes is in the form approved pursuant to
authority granted by the Board of Directors.
This Certificate is delivered pursuant to the provisions of Sections
201, 301, and 303 of the Indenture. The undersigned hereby certify as
follows:
(a) we have read each of the Sections of the Indenture referred to
above;
(b) we have examined the Indenture, the form of Notes and such other
documents, records, and instruments as we have deemed necessary for
purposes of giving this certificate;
(c) to the best of our knowledge, no Event of Default with respect to
the Notes has occurred and is continuing;
(d) in our opinion, we have made such examination and investigation as
is necessary to enable us to express an informed opinion as to whether
the conditions precedent to the issuance of the Notes have been complied
with; and
(e) in our opinion, the conditions precedent to the issuance of the
Notes have been complied with.
Dated:
Liberty Property Limited Partnership
by: Liberty Property Trust
By: ------------------------------
Chief Operating Officer
By: ------------------------------
Chief Financial Officer
(FORM OF NOTE)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO
DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED
REGISTERED
No.
Principal
Amount
CUSIP No.
$
LIBERTY PROPERTY LIMITED PARTNERSHIP
Notes due
Liberty Property Limited Partnership, a Pennsylvania limited partnership
(the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
Cede & Co. or registered assigns, upon presentation, the principal sum
of Dollars ($ ) ,
and to pay interest thereon from (or from the most recent
Interest Payment Date to which interest has been paid or duly provided
for), semi-annually in arrears on and
of each year, commencing on , 199 , and at
Maturity, at a rate of interest of % per annum, until
payment of said principal sum has been made or duly provided for. Any
capitalized term not defined herein shall have the meaning assigned to
it in that certain Indenture by and among the Issuer and The First
National Bank of Chicago, a
, dated as of , 199 .
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date and at Maturity will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at
the close of business on the Regular Record Date for such payment, which
will be 15 calendar days (regardless of whether such day is a Business
Day) next preceding such Interest Payment Date or Maturity, as the case
may be. Any interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date,
and may either be paid to the Holder in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of Notes
of this series not less than ten (10) days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or which
the Notes of this series may be listed, and upon such notice as may be
required by such exchange, as more fully provided in the Indenture.
The principal and Make-Whole Amount, if any, of this Note payable at
Maturity will be paid against presentation and surrender of this Note at
the office or agency of the Issuer maintained for that purpose in The
Borough of Manhattan, The City of New York. The Issuer hereby initially
designates the Corporate Trust Office of the Trustee in The City of New
York as the office to be maintained by it where Notes may be presented
for payment, registration of transfer or exchange and where notices or
demands to or upon the Issuer in respect of the Notes or the Indenture
may be served.
Interest payable on this Note will be computed on the basis of a 360-day
year consisting of twelve 30-day months. If any Interest Payment Date
or Maturity would otherwise be a day that is not a Business Day, the
required payment will be made on the next succeeding Business Day with
the same force and effect as if it were paid on the date such payment
was due, and no interest will accrue on the amount so payable for the
period from and after such Interest Payment Date or Maturity, as the
case may be.
(Notes of this series may be redeemed at any time at the option of the
Issuer, in whole or in part, upon notice to the Holders of not more than
60 nor less than 30 days prior to the Redemption Date, at a redemption
price equal to the sum of (i) the principal amount of the Notes being
redeemed plus accrued interest thereon to the Redemption Date and (ii)
the Make-Whole Amount, if any, with respect to such Notes.)
Payments of principal, Make-Whole Amounts, if any, and interest in
respect of this Note will be made by wire transfer of immediately
available funds, in such coin or currency as at the time of payment is
legal tender for the payment of public and private debts, so long as
this Note is in global form as described in Section 203 of the
Indenture. If this Note is not in global form, all such payments will
be made by wire transfer of immediately available funds if the Holder
hereof at the applicable record date shall have provided wire transfer
instructions to the Trustee, received by the Trustee no later than
fifteen (15) days prior to the applicable payment date, and otherwise
payment shall be made in accordance with Section 307 of the Indenture.
Such wire transfer instructions shall remain in effect until revoked in
a writing received by the Trustee from the Holder hereof.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON
THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to the benefits of the Indenture
referred to on the reverse hereof or be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have
been signed by the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated:
LIBERTY PROPERTY LIMITED PARTNERSHIP, as
Issuer
By: LIBERTY PROPERTY TRUST, not individually but as General Partner
By:
------------------------------
By:
------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
------------------------------
Authorized Signatory
(FORM OF REVERSE OF NOTE)
LIBERTY PROPERTY LIMITED PARTNERSHIP
%, Notes due
This security is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued
or to be issued under an Indenture dated as of ,
1997 (the "Indenture"), between the Issuer and The First National Bank
of Chicago, as Trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture with respect to the series of
Securities of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer
and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise
vary provided in the Indenture. This Security is one of a series
designated on the first page hereof, limited in aggregate principal
amount to $ .
In case an Event of Default with respect to Securities of this series
shall have occurred and be continuing, the principal of, and premium or
Make-Whole Amount, if any, may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect, and
subject to the conditions provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless (i) such
Holder shall have previously given written notice to the Trustee of a
continuing Event of Default with respect to the Outstanding Securities
of this series, (ii) the Holders of not less than 25% in principal
amount of the Outstanding Securities of this series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee, (iii) such Holder or
Holders have offered reasonable indemnity to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with such
request, (iv) the Trustee shall have failed to institute any such
proceeding for 60 days after its receipt of such notice, request and
offer of indemnity and (v) the Trustee shall not have received from the
Holders of a majority in principal amount of Outstanding Securities of
this series a direction inconsistent with such request.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Issuer and
the Trustee with the consent of the Holders of not less than a majority
in principal amount of the Securities of each series at the time
Outstanding affected thereby. The Indenture also contains provisions
permitting the Holders of at least a majority in principal amount of the
Securities of such series Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holders of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium or
Make-Whole Amount, if any, and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer
at the office or agency of the Issuer in any Place of Payment where the
principal of, premium or Make-Whole Amount, if any, on, and interest on
this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities of this series, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (In no event shall the Issuer
be required to pay any Additional Amounts as contemplated by the
Indenture.)
Prior to due presentment of this Security for registration of transfer,
the Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee may treat the Person in whose name this Security is registered
as the absolute owner of this Security (whether or not this Security
shall be overdue and notwithstanding any notation of ownership or other
writing hereon), for the purpose of receiving payment of, or on account
of, the principal hereof and premium, if any, and subject to the
provisions on the face hereof, interest hereon, and for all other
purposes, and none of the Issuer, the Trustee or any authorized agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary.
Notwithstanding anything contained herein or in the Indenture to the
contrary, no recourse under or upon any obligation, covenant or
agreement contained in the Indenture or in this Security, or because of
any indebtedness evidenced thereby (including without limitation, any
obligation or indebtedness relating to the principal of, or premium or
Make-Whole Amount, if any, interest or any other amounts due, or claimed
to be due, on this Security), or for any claim based thereon or
otherwise in respect thereof, shall be had (i) against the Trust or any
other partner in the Issuer, (ii) against any person which owns an
interest, directly or indirectly, in any partner in the Issuer or (iii)
against any promoter, as such, or against any past, present or future
stockholder, partner, officer or director, as such, of the Issuer or of
any successor, either directly or through the Issuer or any successor,
under any rule of law, statute or constitutional provisions or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series. The
Holder of this Security acknowledges by acceptance of this Security that
its sole remedies under the Indenture for any Default by the Issuer in
the payment of the principal of, or any premium or Make-Whole Amount, if
any, interest or any amounts due, or claimed to be due, on this
Security, or otherwise, are limited to claims against the property of
the Issuer as provided in Sections 111 and 503 of the Indenture.
THE INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY
OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP"
numbers to be printed on the Securities of this series as a convenience
to the Holders of such Securities. No representation is made as to the
correctness or accuracy of such CUSIP numbers as printed on the
Securities, and reliance may be placed only on the other identification
numbers printed hereon.
Terms used herein that are defined in the Indenture shall have the
respective meanings assigned them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties Custodian
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to
tenants in common Act State
Additional abbreviations may also be used though not in the above list.
Social Security or taxpayer I.D. or other identifying number of
assignee.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(name and address of assignee)
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing , attorney to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
---------------- ------------------------------
123