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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
______________
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 23, 1999
RECKSON OPERATING PARTNERSHIP, L.P.
(Exact name of Registrant as specified in its Charter)
Delaware
(State of Incorporation)
1-13762 11-3233647
(Commission File Number) (IRS Employer Id. Number)
225 Broadhollow Road 11747
Melville, New York (Zip Code)
(Address of principal executive offices)
(516) 694-6900
(Registrant's telephone number, including area code)
ITEM 5. Other Events
On March 23, 1999, Reckson Operating Partnership L.P. (the "Operating
Partnership"), a subsidiary of Reckson Associates Realty Corp. (the "Company")
agreed to sell $300,000,000 aggregate principal amount of its senior unsecured
notes, comprised of $100,000,000 aggregate principal amount of 7.40% Notes due
2004 and $200,000,000 aggregate principal amount of 7.75% Notes due 2009 in a
public offering through Goldman, Sachs & Co, Chase Securities Inc., Donaldson
Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Salomon Smith Barney Inc. and Warburg Dillon Read LLC, as
underwriters. The Operating Partnership will use the proceeds of the offering to
reduce borrowings under its credit facility.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
4.1 Form of 7.40% Notes due 2004 of the Operating Partnership.
4.2 Form of 7.75% Notes due 2009 of the Operating Partnership.
4.3 Indenture, dated March 26, 1999, among the Operating Partnership, the
Company and The Bank of New York, as trustee.
5 Opinion of Brown & Wood LLP as to the legality of the Securities.
10.1 Underwriting Agreement, dated March 23, 1999, between the Operating
Partnership and Goldman, Sachs & Co., on behalf of itself and the
other named underwriters.
10.2 Terms Agreement, dated March 23, 1999, between the Operating
Partnership and Goldman, Sachs & Co., on behalf of itself and the
other named underwriters.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Michael Maturo
Executive Vice President and
Chief Financial Officer
Date: March 26, 1999
Exhibit 4.1
[FACE OF NOTE]
REGISTERED REGISTERED
NO. 001 PRINCIPAL AMOUNT
CUSIP NO. 75621 L AC 8 $100,000,000
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR 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 NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE 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.
RECKSON OPERATING PARTNERSHIP, L.P.
7.40% Note due 2004
Reckson Operating Partnership, L.P., a limited partnership duly organized
and existing under the laws of Delaware (the "Issuer," which term includes any
successor thereto under the Indenture (as defined on the reverse hereof)), for
value received, hereby promises to pay to Cede & Co. c/o The Depository Trust
Company, or its registered assigns, the principal amount of $100,000,000 on
March 15, 2004 (the "Stated Maturity Date"), unless redeemed on any Redemption
Date (as defined on the reverse hereof) in accordance with the provisions set
forth on the reverse hereof (the Stated Maturity Date or any Redemption Date is
referred to herein as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest on the outstanding principal amount
hereof semiannually in arrears on March 15 and September 15 of each year,
commencing on September 15, 1999 (each, an "Interest Payment Date"), at the
rate of 7.40% per annum, until payment of said principal has been made or duly
provided for. Interest on this Note on an Interest Payment Date will accrue
from and including the immediately preceding Interest Payment Date to which
interest has been paid or duly provided for, or from and including March 26,
1999 if no interest has been paid or duly provided for, to but excluding the
applicable Interest Payment Date or the Maturity Date, as the case may be.
Interest on this Note will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will be paid to the Holder in which name this Note (or
one or more predecessor Notes) is registered in the Security Register at the
close of business on the "Regular Record Date" for such payment, which shall be
the March 1 or September 1, as the case may be, immediately preceding such
Interest Payment Date (regardless of whether such day is a Business Day (as
defined below)). Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and shall be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a subsequent
Special Record Date for the payment of such defaulted interest (which shall be
not more than 15 days and not less than 10 Business Days prior to the date of
the payment of such defaulted interest) established by notice given by mail by
or on behalf of the Issuer to the Holders of the Notes not less than 10 days
preceding such subsequent Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in the Indenture.
The principal of, and the Make-Whole Amount (as defined on the reverse
hereof), if any, with respect to, this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The City of New York. The Issuer
hereby initially designates the Corporate Trust Office of the Trustee at 101
Barclay Street, Floor 21 West, New York, New York 10286 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.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the payment required to be made on such date will, instead,
be made on the next Business Day with the same force and effect as if it were
made on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date or
the Maturity Date, as the case may be. "Business Day" means any day, other than
a Saturday, a Sunday or other day on which banking institutions in The City of
New York are authorized or required by law, regulation or executive order to be
closed.
Payments of principal, Make-Whole Amount, if any, and interest in respect
of this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts (i) in the case of payments on the Maturity Date, in immediately
available funds and (ii) in the case of payments on an Interest Payment Date,
at the option of the Issuer, by check mailed to the Holder entitled thereto at
the applicable address appearing in the Security Register or by transfer of
immediately available funds to an account maintained by the payee with a bank
located in the United States of America; provided, however, that so long as
Cede & Co. is the Holder of this Note, payments of interest on an Interest
Payment Date will be made in immediately available funds.
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 or be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been executed by manual signature by the
Trustee.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by an authorized signatory.
Dated: March 26, 1999
RECKSON OPERATING PARTNERSHIP, L.P.,
as Issuer
By: RECKSON ASSOCIATES REALTY CORP.,
as General Partner
By: ___________________________
Name:
Title:
Attest:
- ---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK ,
as Trustee
By:_______________________________
Authorized Signatory
[REVERSE OF NOTE]
RECKSON OPERATING PARTNERSHIP, L.P.
7.40% Note due 2004
This Note 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 and pursuant to an Indenture, dated as of March 26, 1999 (the
"Indenture"), duly executed and delivered by the Issuer and Reckson Associates
Realty Corp., a Maryland corporation ("Reckson Associates"), as guarantor, if
applicable, to The Bank of New York, as trustee (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), and reference is hereby made to
the Indenture, and all modifications and amendments and indentures supplemental
thereto relating to the Notes, made for a description of the rights,
limitations of rights, obligations, duties, and immunities thereunder of the
Trustee, the Issuer and the Holders of the Notes and the terms upon which the
Notes are 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 accrue interest (if any)
at different rates or formulas and may otherwise vary as provided in the
Indenture. This Note is one of a series of Securities designated as the "7.40%
Notes due 2004" of the Issuer, limited (except as permitted under the
Indenture) in aggregate principal amount to $100,000,000. The Notes will not be
guaranteed by Reckson Associates.
The Issuer may redeem this Note, at any time in whole or form time to time
in part, at the option of the Issuer, at a redemption price equal to the sum of
(i) the principal amount being redeemed plus accrued interest thereon to the
date fixed for redemption (the "Redemption Date") and (ii) the Make-Whole
Amount, if any, with respect thereto (the "Redemption Price"); provided,
however, that interest installments due on an Interest Payment Date which is on
or prior to the Redemption Date will be payable to the Holder hereof (or one or
more predecessor Notes) as of the close of business on the Regular Record Date
preceding such Interest Payment Date. If notice has been given as provided in
the Indenture and funds for the redemption of this Note or any part thereof
called for redemption shall have been made available on the Redemption Date,
this Note or such part thereof will cease to bear interest on the Redemption
Date referred to in such notice and the only right of the Holder will be to
receive payment of the Redemption Price. Notice of any optional redemption of
any Notes will be given to the Holder hereof (in accordance with the provisions
of the Indenture), not more than 60 nor less than 30 days prior to the
Redemption Date. The notice of redemption will specify, among other things, the
Redemption Price and the principal amount of Notes to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms and provisions as
this Note shall be issued by the Issuer in the name of the Holder hereof upon
the presentation and surrender hereof.
"Make-Whole Amount" means the excess, if any, of (i) the aggregate present
value as of the Redemption Date of each dollar of principal being redeemed and
the amount of interest (exclusive of interest accrued to the Redemption Date)
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 such notice of redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, over (ii) the aggregate principal amount
being redeemed.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to maturity,
as of the Redemption Date, of the principal being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding each of
such relevant periods to the nearest month. For the purpose 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.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on
actively traded Untied 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
designated by the Issuer.
This Note is not subject to repayment at the option of the Holder thereof.
Furthermore, this Note is not entitled to the benefit of, and is not subject
to, any sinking fund.
In case an Event of Default with respect to this Note shall have occurred
and be continuing, the principal hereof 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.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and, if applicable, the Guarantor, and the rights of the Holders of the
Securities under the Indenture at any time by the Issuer and, if applicable,
the Guarantor, and the Trustee with the consent of the Holders of a majority in
the aggregate principal amount of Securities of any series issued under the
Indenture at the time Outstanding and affected thereby. Furthermore, provisions
in the Indenture permit the Holders of a majority in the aggregate principal
amount of the Outstanding Securities of any series, in certain instances, to
waive, on behalf of all of the Holders of Securities of such series, certain
past defaults under the Indenture and their consequences. Any such waiver by
the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange hereof, or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of, and Make-Whole Amount, if any, with
respect to, and interest on, this Note in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
This Note is issuable only in fully registered form, without coupons, in
denominations of $1,000 and integral multiples thereof. This Note may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations at the office or agency of the Issuer in The City of New York, in
the manner and subject to the limitations provided herein and in the Indenture,
but without the payment of any charge except for any tax or other governmental
charge imposed in connection therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in The City of New York, one or more new Notes
of authorized denominations in an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided herein and in the Indenture, but without payment of any charge except
for any tax or other governmental charge imposed in connection therewith.
The Issuer or the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this Note is registered as
the Holder and absolute owner of this Note (whether or not this Note 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 of or
Make-Whole Amount, if any, with respect to, or subject to the provisions on the
face hereof, interest on, this Note 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.
The Indenture and this Note shall be deemed to be a contract under the
laws of the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of such State, without giving effect to
any conflict of law principles.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Indenture.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto_____________________________________________
- ------------------------------------------------------------------.
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------
(Please print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
- ------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably
constitutes and
appoints___________________________________________
- -------------------------------------------------------------------
to transfer said Note on the books of the Issuer, with full power of
substitution in the premises.
Dated:__________________________
Signature Guaranteed
- ---------------------------------------- -----------------------------------
NOTICE: Signature must be guaranteed by NOTICE: The signature to this
an eligible Guarantor Institution Assignment must correspond with
(banks, stockbrokers, savings the name as written upon the face
and loan associations and of the within Note in every
credit unions) with membership in particular, without alteration or
an approved signature guarantee enlargement or any change
medallion program pursuant to Securities whatever.
and Exchange Commission Rule
17Ad-15.
Exhibit 4.2
[FACE OF NOTE]
REGISTERED REGISTERED
NO. 001 PRINCIPAL AMOUNT
CUSIP NO. 75621 L AD 6 $200,000,000
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR 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 NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE 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.
RECKSON OPERATING PARTNERSHIP, L.P.
7.75% Note due 2009
Reckson Operating Partnership, L.P., a limited partnership duly organized
and existing under the laws of Delaware (the "Issuer," which term includes any
successor thereto under the Indenture (as defined on the reverse hereof)), for
value received, hereby promises to pay to Cede & Co. c/o The Depository Trust
Company, or its registered assigns, the principal amount of $200,000,000 on
March 15, 2009 (the "Stated Maturity Date"), unless redeemed on any Redemption
Date (as defined on the reverse hereof) in accordance with the provisions set
forth on the reverse hereof (the Stated Maturity Date or any Redemption Date is
referred to herein as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest on the outstanding principal amount
hereof semiannually in arrears on March 15 and September 15 of each year,
commencing on September 15, 1999 (each, an "Interest Payment Date"), at the
rate of 7.75% per annum, until payment of said principal has been made or duly
provided for. Interest on this Note on an Interest Payment Date will accrue
from and including the immediately preceding Interest Payment Date to which
interest has been paid or duly provided for, or from and including March 26,
1999 if no interest has been paid or duly provided for, to but excluding the
applicable Interest Payment Date or the Maturity Date, as the case may be.
Interest on this Note will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will be paid to the Holder in which name this Note (or
one or more predecessor Notes) is registered in the Security Register at the
close of business on the "Regular Record Date" for such payment, which shall be
the March 1 or September 1, as the case may be, immediately preceding such
Interest Payment Date (regardless of whether such day is a Business Day (as
defined below)). Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and shall be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a subsequent
Special Record Date for the payment of such defaulted interest (which shall be
not more than 15 days and not less than 10 Business Days prior to the date of
the payment of such defaulted interest) established by notice given by mail by
or on behalf of the Issuer to the Holders of the Notes not less than 10 days
preceding such subsequent Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in the Indenture.
The principal of, and the Make-Whole Amount (as defined on the reverse
hereof), if any, with respect to, this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the office or agency
of the Issuer maintained for that purpose in The City of New York. The Issuer
hereby initially designates the Corporate Trust Office of the Trustee at 101
Barclay Street, Floor 21 West, New York, New York 10286 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.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the payment required to be made on such date will, instead,
be made on the next Business Day with the same force and effect as if it were
made on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date or
the Maturity Date, as the case may be. "Business Day" means any day, other than
a Saturday, a Sunday or other day on which banking institutions in The City of
New York are authorized or required by law, regulation or executive order to be
closed.
Payments of principal, Make-Whole Amount, if any, and interest in respect
of this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts (i) in the case of payments on the Maturity Date, in immediately
available funds and (ii) in the case of payments on an Interest Payment Date,
at the option of the Issuer, by check mailed to the Holder entitled thereto at
the applicable address appearing in the Security Register or by transfer of
immediately available funds to an account maintained by the payee with a bank
located in the United States of America; provided, however, that so long as
Cede & Co. is the Holder of this Note, payments of interest on an Interest
Payment Date will be made in immediately available funds.
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 or be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been executed by manual signature by the
Trustee.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by an authorized signatory.
Dated: March 26, 1999
RECKSON OPERATING PARTNERSHIP, L.P.,
as Issuer
By: RECKSON ASSOCIATES REALTY CORP.,
as General Partner
By: ___________________________
Name:
Title:
Attest:
- --------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK ,
as Trustee
By:_______________________________
Authorized Signatory
[REVERSE OF NOTE]
RECKSON OPERATING PARTNERSHIP, L.P.
7.75% Note due 2009
This Note 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 and pursuant to an Indenture, dated as of March 26, 1999 (the
"Indenture"), duly executed and delivered by the Issuer and Reckson Associates
Realty Corp., a Maryland corporation ("Reckson Associates"), as guarantor, if
applicable, to The Bank of New York, as trustee (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), and reference is hereby made to
the Indenture, and all modifications and amendments and indentures supplemental
thereto relating to the Notes, made for a description of the rights,
limitations of rights, obligations, duties, and immunities thereunder of the
Trustee, the Issuer and the Holders of the Notes and the terms upon which the
Notes are 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 accrue interest (if any)
at different rates or formulas and may otherwise vary as provided in the
Indenture. This Note is one of a series of Securities designated as the "7.75%
Notes due 2009" of the Issuer, limited (except as permitted under the
Indenture) in aggregate principal amount to $200,000,000. The Notes will not be
guaranteed by Reckson Associates.
The Issuer may redeem this Note, at any time in whole or form time to time
in part, at the option of the Issuer, at a redemption price equal to the sum of
(i) the principal amount being redeemed plus accrued interest thereon to the
date fixed for redemption (the "Redemption Date") and (ii) the Make-Whole
Amount, if any, with respect thereto (the "Redemption Price"); provided,
however, that interest installments due on an Interest Payment Date which is on
or prior to the Redemption Date will be payable to the Holder hereof (or one or
more predecessor Notes) as of the close of business on the Regular Record Date
preceding such Interest Payment Date. If notice has been given as provided in
the Indenture and funds for the redemption of this Note or any part thereof
called for redemption shall have been made available on the Redemption Date,
this Note or such part thereof will cease to bear interest on the Redemption
Date referred to in such notice and the only right of the Holder will be to
receive payment of the Redemption Price. Notice of any optional redemption of
any Notes will be given to the Holder hereof (in accordance with the provisions
of the Indenture), not more than 60 nor less than 30 days prior to the
Redemption Date. The notice of redemption will specify, among other things, the
Redemption Price and the principal amount of Notes to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms and provisions as
this Note shall be issued by the Issuer in the name of the Holder hereof upon
the presentation and surrender hereof.
"Make-Whole Amount" means the excess, if any, of (i) the aggregate present
value as of the Redemption Date of each dollar of principal being redeemed and
the amount of interest (exclusive of interest accrued to the Redemption Date)
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 such notice of redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, over (ii) the aggregate principal amount
being redeemed.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to maturity,
as of the Redemption Date, of the principal being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding each of
such relevant periods to the nearest month. For the purpose 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.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on
actively traded Untied 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
designated by the Issuer.
This Note is not subject to repayment at the option of the Holder thereof.
Furthermore, this Note is not entitled to the benefit of, and is not subject
to, any sinking fund.
In case an Event of Default with respect to this Note shall have occurred
and be continuing, the principal hereof 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.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and, if applicable, the Guarantor, and the rights of the Holders of the
Securities under the Indenture at any time by the Issuer and, if applicable,
the Guarantor, and the Trustee with the consent of the Holders of a majority in
the aggregate principal amount of Securities of any series issued under the
Indenture at the time Outstanding and affected thereby. Furthermore, provisions
in the Indenture permit the Holders of a majority in the aggregate principal
amount of the Outstanding Securities of any series, in certain instances, to
waive, on behalf of all of the Holders of Securities of such series, certain
past defaults under the Indenture and their consequences. Any such waiver by
the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange hereof, or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of, and Make-Whole Amount, if any, with
respect to, and interest on, this Note in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
This Note is issuable only in fully registered form, without coupons, in
denominations of $1,000 and integral multiples thereof. This Note may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations at the office or agency of the Issuer in The City of New York, in
the manner and subject to the limitations provided herein and in the Indenture,
but without the payment of any charge except for any tax or other governmental
charge imposed in connection therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in The City of New York, one or more new Notes
of authorized denominations in an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided herein and in the Indenture, but without payment of any charge except
for any tax or other governmental charge imposed in connection therewith.
The Issuer or the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this Note is registered as
the Holder and absolute owner of this Note (whether or not this Note 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 of or
Make-Whole Amount, if any, with respect to, or subject to the provisions on the
face hereof, interest on, this Note 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.
The Indenture and this Note shall be deemed to be a contract under the
laws of the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of such State, without giving effect to
any conflict of law principles.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Indenture.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto_____________________________________________
- ------------------------------------------------------------------.
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------
(Please print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
- ------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints___________________________________________
- -------------------------------------------------------------------
to transfer said Note on the books of the Issuer, with full power of
substitution in the premises.
Dated:__________________________
Signature Guaranteed
- --------------------------------------- ----------------------------------
NOTICE: Signature must be guaranteed by NOTICE: The signature to this
an eligible Guarantor Institution (banks, Assignment must correspond with
stockbrokers, savings and loan associations the face of the within Note in
and credit unions) with membership in an every particular, without
an approved signature guarantee alteration or enlargement or any
medallion program pursuant to Securities change whatever.
and Exchange Commission Rule
17Ad-15.
Exhibit 4.3
RECKSON OPERATING PARTNERSHIP, L.P.,
Issuer
and
RECKSON ASSOCIATES REALTY CORP.,
Guarantor
to
THE BANK OF NEW YORK,
Trustee
---------------
INDENTURE
---------------
Dated as of March 26, 1999
Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 607
(a)(2) 607
(b) 608
Section 312(a) 701
(b) 702
(c) 702
Section 313(a) 703
(b)(2) 703
(c) 703
(d) 703
Section 314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
Section 316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 108
- ------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 are a part of and govern every qualified
indenture, whether or not physically contained herein.
Table of Contents
ARTICLE One
Definitions and Other Provisions of General ApplicatioN
Section 101. Definitions..........................................2
Act................................................................2
Additional Amounts.................................................2
Affiliate..........................................................2
Annual Service Charge..............................................3
Authenticating Agent...............................................3
Authorized Newspaper...............................................3
Bearer Security....................................................3
Board of Directors.................................................3
Board Resolution...................................................3
Business Day.......................................................3
Code...............................................................3
Commission.........................................................3
Common Stock.......................................................4
Consolidated Income Available for Debt Service.....................4
Consolidated Net Income............................................4
Conversion Event...................................................4
Corporate Trust Office.............................................4
Corporation........................................................4
Coupon.............................................................4
Currency...........................................................4
CUSIP number.......................................................4
Defaulted Interest.................................................5
Dollars............................................................5
Euro...............................................................5
European Monetary System...........................................5
European Union.....................................................5
Event of Default...................................................5
Exchange Act.......................................................5
Foreign Currency...................................................5
GAAP...............................................................5
General Partner....................................................5
Government Obligations.............................................5
Guarantee..........................................................6
Guaranteed Securities..............................................6
Guarantor..........................................................6
Guarantor's Board of Directors.....................................6
Guarantor's Board Resolution.......................................6
Guarantor's Officers' Certificate..................................6
Guarantor Request..................................................6
Holder.............................................................6
Indebtedness.......................................................6
Indenture..........................................................7
Independent Public Accountants.....................................7
Indexed Security...................................................7
Interest...........................................................7
Interest Payment Date..............................................7
Issuer.............................................................7
Issuer Request.....................................................7
Judgment Currency..................................................8
Legal Holiday......................................................8
Lien...............................................................8
Maturity...........................................................8
New York Banking Day...............................................8
Office.............................................................8
Officers' Certificate..............................................8
Opinion of Counsel.................................................8
Original Issue Discount Security...................................8
Outstanding........................................................9
Paying Agent......................................................10
Permitted Debt....................................................10
Person............................................................10
Place of Payment..................................................10
Predecessor Security..............................................10
Redemption Date...................................................10
Redemption Price..................................................11
Registered Security...............................................11
Regular Record Date...............................................11
Required Currency.................................................11
Responsible Officer...............................................11
Security..........................................................11
Security Register.................................................11
Special Record Date...............................................11
Stated Maturity...................................................11
Subsidiary........................................................11
Total Assets......................................................12
Total Unencumbered Assets.........................................12
Trust Indenture Act...............................................12
Trustee...........................................................12
Undepreciated Real Estate Assets..................................12
United States.....................................................12
United States Alien...............................................12
Unsecured Debt....................................................13
U.S. Depository...................................................13
Vice President....................................................13
Voting Stock......................................................13
Section 102. Compliance Certificates and Opinions.................13
Section 103. Form of Documents Delivered to Trustee...............13
Section 104. Acts of Holders......................................14
Section 105. Notices, etc., to Trustee and Issuer and Guarantor...16
Section 106. Notice to Holders of Securities; Waiver..............16
Section 107. Language of Notices..................................17
Section 108. Conflict with Trust Indenture Act....................17
Section 109. Effect of Headings and Table of Contents.............17
Section 110. Successors and Assigns...............................17
Section 111. Separability Clause..................................18
Section 112. Benefits of Indenture................................18
Section 113. Governing Law........................................18
Section 114. Legal Holidays.......................................18
Section 115. Counterparts.........................................18
Section 116. Judgment Currency....................................18
ARTICLE Two
Securities Forms
Section 201. Forms Generally......................................19
Section 202. Form of Trustee's Certificate of Authentication......19
Section 203. Securities in Global Form............................20
ARTICLE Three
The Securities
Section 301. Amount Unlimited; Issuable in Series.................21
Section 302. Currency; Denominations..............................24
Section 303. Execution, Authentication, Delivery and Dating.......25
Section 304. Temporary Securities.................................27
Section 305. Registration, Transfer and Exchange..................27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.....31
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved............................................32
Section 308. Persons Deemed Owners................................34
Section 309. Cancellation.........................................34
Section 310. Computation of Interest..............................35
ARTICLE Four
Satisfaction and Discharge of Indenture
Section 401. Satisfaction and Discharge...........................35
Section 402. Defeasance and Covenant Defeasance...................37
Section 403. Application of Trust Money...........................41
ARTICLE Five
Remedies
Section 501. Events of Default....................................41
Section 502. Acceleration of Maturity; Rescission and Annulment...43
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...............................44
Section 504. Trustee May File Proofs of Claim.....................45
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons................................46
Section 506. Application of Money Collected.......................46
Section 507. Limitations on Suits.................................46
Section 508. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts.....47
Section 509. Restoration of Rights and Remedies...................47
Section 510. Rights and Remedies Cumulative.......................47
Section 511. Delay or Omission Not Waiver.........................48
Section 512. Control by Holders of Securities.....................48
Section 513. Waiver of Past Defaults..............................48
Section 514. Waiver of Stay or Extension Laws.....................49
Section 515. Undertaking for Costs................................49
ARTICLE Six
The Trustee
Section 601. Certain Rights of Trustee............................49
Section 602. Notice of Defaults...................................51
Section 603. Not Responsible for Recitals or Issuance of
Securities...........................................51
Section 604. May Hold Securities..................................51
Section 605. Money Held in Trust..................................51
Section 606. Compensation and Reimbursement.......................52
Section 607. Corporate Trustee Required; Eligibility..............52
Section 608. Resignation and Removal; Appointment of Successor....53
Section 609. Acceptance of Appointment by Successor...............54
Section 610. Merger, Conversion, Consolidation or Succession to
Business.............................................55
Section 611. Appointment of Authenticating Agent..................56
ARTICLE Seven
Holders Lists and Reports by Trustee, Guarantor and Issuer
Section 701. Issuer and the Guarantor to Furnish Trustee Names
and Addresses of Holders.............................58
Section 702. Preservation of Information; Communications
to Holders...........................................58
Section 703. Reports by Trustee...................................58
Section 704. Reports by Issuer and Guarantor......................59
ARTICLE Eight
Consolidation, Merger and Sales
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms..60
Section 802. Successor Person Substituted for Issuer..............60
Section 803. Guarantor May Consolidate, Etc., Only on Certain
Terms................................................61
Section 804. Successor Person Substituted for Guarantor...........61
Section 805. Assumption by Guarantor..............................61
ARTICLE Nine
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders...62
Section 902. Supplemental Indentures with Consent of Holders......63
Section 903. Execution of Supplemental Indentures.................65
Section 904. Effect of Supplemental Indentures....................65
Section 905. Reference in Securities to Supplemental Indentures...65
Section 906. Conformity with Trust Indenture Act..................65
ARTICLE Ten
Covenants
Section 1001. Payment of Principal, any Premium, Interest
and Additional Amounts...............................65
Section 1002. Maintenance of Office or Agency......................66
Section 1003. Money for Securities Payments to Be Held in Trust....67
Section 1004. Additional Amounts...................................68
Section 1005. Limitation on Incurrance of Debt.....................70
Section 1006. Maintenance of Total Unencumbered Assets.............70
Section 1007. Maintenance of Properties............................71
Section 1008. Insurance............................................71
Section 1009. Existence............................................71
Section 1010. Payment of Taxes and Other Claims....................71
Section 1011. Provision of Financial Information...................72
Section 1012. Waiver of Certain Covenants..........................72
Section 1013. Issuer Statement as to Compliance; Notice
of Certain Defaults..................................72
Section 1014. Guarantor Statement as to Compliance; Notice of
Certain Defaults.....................................72
ARTICLE Eleven
Redemption of Securities
Section 1101. Applicability of Article.............................73
Section 1102. Election to Redeem; Notice to Trustee................73
Section 1103. Selection by Trustee of Securities to be Redeemed....74
Section 1104. Notice of Redemption.................................74
Section 1105. Deposit of Redemption Price..........................75
Section 1106. Securities Payable on Redemption Date................75
Section 1107. Securities Redeemed in Part..........................76
ARTICLE Twelve
Sinking Funds
Section 1201. Applicability of Article.............................76
Section 1202. Satisfaction of Sinking Fund Payments
with Securities......................................77
Section 1203. Redemption of Securities for Sinking Fund............77
ARTICLE Thirteen
Repayment at the Option of Holders
Section 1301. Applicability of Article.............................78
ARTICLE Fourteen
Securities in Foreign Currencies
Section 1401. Applicability of Article.............................78
ARTICLE Fifteen
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called............79
Section 1502. Call, Notice and Place of Meetings...................79
Section 1503. Persons Entitled to Vote at Meetings.................79
Section 1504. Quorum; Action.......................................80
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings..............................80
Section 1506. Counting Votes and Recording Action of Meetings......81
ARTICLE Sixteen
Guarantee
Section 1601. Guarantee............................................82
INDENTURE, dated as of March 26, 1999 (the "Indenture"), among RECKSON
OPERATING PARTNERSHIP, L.P., a limited partnership duly organized and existing
under the laws of Delaware (hereinafter called the "Issuer"), having its
principal executive office located at 225 Broadhollow Road, Melville, NY 11747,
RECKSON ASSOCIATES REALTY CORP., a corporation duly organized and existing
under the laws of the Maryland (hereinafter called the "Guarantor" or the
"General Partner"), having its principal executive office at 225 Broadhollow
Road, Melville, NY 11747, and The Bank of New York, a New York banking
corporation (hereinafter called the "Trustee"), having its Corporate Trust
Office located at 101 Barclay Street, Floor 21 West, New York, New York 10286.
RECITALS
The execution and delivery by the Issuer of this Indenture to provide
for the issuance from time to time of the Issuer's senior unsecured debentures,
notes or other evidences of Indebtedness (hereinafter called the "Securities"),
unlimited as to principal amount, to bear such rates of interest, to mature at
such time or times, to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided, has been duly authorized.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
For value received, the execution and delivery by the Guarantor of
this Indenture to provide for the issuance of the Guarantee provided for herein
has been duly authorized. All things necessary to make this Indenture a valid
agreement of the Guarantor, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof and any Coupons (as herein defined)
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the terms
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Issuer in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing
to such Holders.
"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 the meanings correlative to
the foregoing.
"Annual Service Charge" as of any date means the amount which is
expensed in any 12-month period for interest on Indebtedness.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in
the place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the General
Partner or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the General Partner to have been
duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or in The City of
New York, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Code" means the Internal Revenue Code of 1986, as amended, together
with its predecessor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the General Partner
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the General Partner and which is not subject to redemption by the General
Partner.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income of the Issuer and its Subsidiaries (i) plus amounts
which have been deducted for (a) interest on Indebtedness of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its Subsidiaries based
on income, (c) amortization of debt discount, (d) depreciation and
amortization, (e) the effect of any noncash charge resulting from a change in
accounting principles in determining Consolidated Net Income for such period,
(f) amortization of deferred charges, and (g) provisions for or realized losses
on properties and (ii) less amounts which have been included for gains on
properties.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer 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 or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community or (ii) the Euro both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Community.
"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 of original execution of this
Indenture is located at 101 Barclay Street, Floor 21 West, New York, New York
10286.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required
to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated
by the terms hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender for
payment of public or private debts in the United States of America. "Euro"
means the European Currency Units as defined and revised from time to time by
the Council of the European Community. "European Monetary System" means the
European Monetary System established by the Resolution of December 5, 1978 of
the Council of the European Community. "European Union" means the European
Community, the European Coal and Steel Community and the European Atomic Energy
Community. "Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, 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 such accounting principles as are generally accepted in
the United States of America as of the date or time of any computation required
hereunder.
"General Partner" means Reckson Associates Realty Corp., as
the sole general partner of the Issuer.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments 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 other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers 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 or other amount with respect to 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 or other amount with respect to the Government Obligation evidenced by such
depository receipt.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on or any Additional Amounts with
respect to the Guaranteed Securities by the Guarantor, as more fully set forth
in Article Sixteen.
"Guaranteed Securities" means a series of Securities made subject to a
Guarantee (as set forth in Article Sixteen) pursuant to Section 301.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Directors" means the board of directors of the
Guarantor or any committee of that board duly authorized to act generally or in
any particular respect for the Guarantor hereunder.
"Guarantor's Board Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Directors and
to be in full force and effect on the date of such certification, delivered to
the Trustee.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 14(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" mean, respectively, a
written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, and
delivered to the Trustee.
"Holder," in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.
"Indebtedness" means any indebtedness, 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, (iii) the
reimbursement obligations, contingent or otherwise, 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
as lessee which would be reflected on a balance sheet as a capitalized lease in
accordance with GAAP, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than letters of credit)
would appear as a liability on a balance sheet in accordance with GAAP, and
also includes, to the extent not otherwise included, any obligation 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.
"Indenture" means this instrument 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, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Issuer and the Guarantor and any other
obligor under the Securities or the Coupons, are independent public accountants
within the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Issuer or the
Guarantor or who may be other independent public accountants. Such accountants
or firm shall be entitled to rely upon any Opinion of Counsel as to the
interpretation of any legal matters relating to this Indenture or certificates
required to be provided hereunder.
"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", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date", with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor Person, and any other obligor upon the Securities.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Issuer by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the General Partner acting in its capacity as the
general partner of the Issuer, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holiday" means a day that is not a Business Day.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person. A Capital Lease is a
lease to which the lessee is required concurrently to recognize the acquisition
of an asset and the incurrence of a liability in accordance with GAAP.
"Maturity", 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 provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Issuer or the Guarantor maintained or designated in a Place of
Payment for such Securities pursuant to Section 1002 or any other office or
agency of the Issuer maintained or designated for such Securities pursuant to
Section 1002 or, to the extent designated or required by Section 1002 in lieu
of such office or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the General Partner in its capacity as sole managing general partner of the
Issuer, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Issuer or the Guarantor, as the case may be, or
other counsel who shall be reasonably acceptable to the Trustee, that, if
required by the Trust Indenture Act, complies with the requirements of Section
314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Issuer or the Guarantor) in
trust or set aside and segregated in trust by the Issuer or the
Guarantor (if the Issuer shall act as its own, or authorize the
Guarantor to act as, 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;
(c) any such Security with respect to which the Issuer or the
Guarantor has effected defeasance pursuant to the terms hereof,
except to the extent provided in Section 402; and
(d) any such Security which has 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, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in
whose hands such Security is a valid obligation of the Issuer.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination 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 in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Issuer, the Guarantor or any other obligor upon
the Securities or any Affiliate of the Issuer, the Guarantor or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Issuer, the Guarantor or any other obligor upon the
Securities or any Coupons appertaining thereto or an Affiliate of the Issuer,
the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Issuer.
"Permitted Debt" means Indebtedness of the Issuer or any Subsidiary
owing to any Subsidiary or the Issuer; provided that any such Indebtedness is
made pursuant to an intercompany note and is subordinated in right of payment
to the Securities; provided further that any disposition, pledge or transfer of
any such Indebtedness to a Person (other than the Issuer or another Subsidiary)
shall be deemed to be an incurrence of such Indebtedness by the Issuer or a
Subsidiary, as the case may be, and not Permitted Debt as defined herein.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness 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 lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the "Regular
Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer of the Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case
may be, 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 any such Person, shall 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.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due
and payable.
"Subsidiary" means any entity of which at the time of determination
the Issuer or one or more subsidiaries owns or controls directly or indirectly
more than 50% of the shares of Voting Stock.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets, (ii) all other assets of the Issuer, and of its
Subsidiaries determined at the applicable proportionate interest of the Issuer
in each such Subsidiary, determined in accordance with GAAP (but excluding
intangibles and accounts receivable) and (iii) the cost of any property of the
Issuer, or any Subsidiary thereof, in which the Issuer, or such Subsidiary, as
the case may be, has a firm, non-contingent purchase obligation.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to a Lien on a consolidated basis, (ii) all
other assets of the Issuer, and of its Subsidiaries determined at the
applicable proportionate interest of the Issuer in each such Subsidiary, which
are not subject to a Lien determined in accordance with GAAP (but excluding
intangibles and accounts receivable) and (iii) the cost of any property of the
Issuer, or any Subsidiary thereof, in which the Issuer, or such Subsidiary, as
the case may be, has a firm, non-contingent purchase obligation and which is
not subject to a Lien.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"Undepreciated Real Estate Assets" means as of any date the cost
(original cost plus capital improvements) of real estate assets of the Issuer
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"Unsecured Debt" means Indebtedness of the Issuer or any Subsidiary
which is not secured by any mortgage, lien, charge, pledge or security interest
of any kind upon any of the properties owned by the Issuer or any of its
Subsidiaries.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Issuer in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President," when used with respect to a vice president of the
General Partner acting in its capacity as the sole managing general partner of
the Issuer, or with respect to the Guarantor or the Trustee, means any vice
president, whether or not designated by a number or a word or words added
before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Corporation
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Issuer or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Issuer or the Guarantor,
as the case may be, shall furnish to the Trustee an Officers' Certificate or a
Guarantor's Officers' Certificate, as the case may be, 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 or any of them is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel 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 Issuer or the
Guarantor, as the case may be, stating that the information with respect to
such factual matters is in the possession of the Issuer or the Guarantor, as
the case may be, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If, but only if, Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to 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 Issuer and the Guarantor. 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 (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Issuer and the Guarantor and any
agent of the Trustee or the Issuer and the Guarantor, 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.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other Act, whether or not such Holders remain Holders after
such record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, 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 reasonably acceptable to the Issuer
and the Guarantor, wherever situated, if such certificate shall be deemed by
the Issuer and 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, the Guarantor and the Issuer 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, principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner which
the Issuer and the Trustee deem sufficient.
(5) If the Issuer or the Guarantor shall solicit from the Holders of
any Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Issuer or the Guarantor, as the case
may be, may at its option (but is not obligated to), by Board Resolution or
Guarantor's Board Resolution, as the case may be, fix in advance a record date
for the determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. 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 Registered Securities of record at
the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
of Registered Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by 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 or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, the Guarantor or the Issuer in reliance thereon,
whether or not notation of such Act is made upon such Security.
Section 105. Notices, etc., to Trustee and Issuer and Guarantor.
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, the Guarantor or the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing (which may be by facsimile) to or with the Trustee at its
Corporate Trust Office, or
(2) the Issuer or the Guarantor by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Issuer or the Guarantor, as the case may be, addressed to the attention of
its Treasurer at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Issuer or the Guarantor, as the
case may be.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to
each Holder of a Registered Security 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; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City
of New York and, if such Securities are then listed on any stock
exchange outside the United States, in an Authorized Newspaper in such
city as the Issuer shall advise the Trustee that such stock exchange so
requires, on a Business Day at least twice, the first such publication
to be not earlier than the earliest date and the second such publication
not later than the latest 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
so mailed, to any particular Holder of a Registered Security 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 which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case 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 Bearers 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 failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice mailed
to Holders of Registered Securities as provided above.
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 of Securities 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. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Issuer or the Guarantor, as the case may
be, so elects, any published notice may be in an official language of the
country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall
bind its successors and assigns, whether so expressed or not. All covenants and
agreements in this Indenture by the Guarantor shall bind its successors and
assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 113. Governing Law. This Indenture, the Securities and any
Coupons shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made or instruments entered into
and, in each case, performed in said state.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or
exchangeable, shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically
states that such provision shall apply in lieu hereof) payment need not be made
at such Place of Payment on such date, and such Securities need not be
converted or exchanged on such date but such payment may be made, and such
Securities may be converted or exchanged, on the next succeeding day that is a
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or at the Stated Maturity or Maturity or on such
last day for conversion or exchange, and no interest shall accrue on the amount
payable on such date or at such time for the period from and after such
Interest Payment Date, Stated Maturity, Maturity or last day for conversion or
exchange, as the case may be, to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Issuer agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Legal Holiday in The City of New York.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the
form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
or pursuant to this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive 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 of the Issuer executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK ,
--------------------------
as Trustee
By__________________________
Authorized Signatory
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Issuer Order to be delivered pursuant to Section 303 or 304 with respect
thereto. 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 Issuer Order. If an Issuer Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Issuer with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or 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 Issuer, the Trustee and any agent of the Issuer
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(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, 905 or
1107);
(3) the percentage of the principal amount at which the Securities
of the series will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of maturity thereof;
(4) 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;
(5) 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, the person to whom such interest shall be payable,
and the basis upon which interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
(6) the place or places, if any, other than or in addition to The
City of New York, where the principal of (and premium, 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 or
exchange and notices or demands to or upon the Issuer in respect of the
Securities of the series and this Indenture may be served;
(7) 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 Issuer, if the Issuer is to have the option;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or
prices at which, the currency or currencies, currency unit 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, in whole or in part, pursuant to such obligation;
(9) 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 denominations of $5,000 and
any integral multiple thereof, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(10) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(11) 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;
(12) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, 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;
(13) whether the amount of payments of principal of (and premium, 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;
(14) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to be
payable, at the election of the Issuer 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;
(15) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(16) any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer 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;
(17) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and vice
versa (if permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor
of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than 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;
(18) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(19) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(20) if the Securities of such series are to be Guaranteed
Securities;
(21) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable
to the Securities of such series or any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Four;
(22) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(23) 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;
(24) whether and under what circumstances the Issuer will pay
Additional Amounts 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 Issuer will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of any
such option);
(25) with respect to any Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as
a change of control of the Issuer), (i) the possible effects of such
provisions on the market price of the Issuer's or the General Partner's
securities or in deterring certain mergers, tender offers or other
takeover attempts, and the intention of the Issuer to comply with the
requirements of Rule 14e-1 under the Exchange Act and any other
applicable securities laws in connection with such provisions; (ii)
whether the occurrence of the specified events may give rise to
cross-defaults on other indebtedness such that payment on such
Securities may be effectively subordinated; and (iii) the existence of
any limitation on the Issuer's financial or legal ability to repurchase
such Securities upon the occurrence of such an event (or, if true, the
lack of assurance that such a repurchase can be effected) and the
impact, if any, under the Indenture of such a failure, including whether
and under what circumstances such a failure may constitute an Event of
Default; and
(26) 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 all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity, and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Issuer in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided by the Issuer, a series may be reopened for
issuances of additional Securities of such series or to establish additional
terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, and the Bearer Securities
denominated in Dollars shall be issuable in the denomination of $5,000.
Securities not denominated in Dollars shall be issuable in such denominations
as are established with respect to such Securities in or pursuant to this
Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Issuer by the General
Partner acting in its capacity as sole managing general partner of the Issuer
by the General Partner's Chairman of the Board, one of its Vice Chairmen, its
President, its Treasurer or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. Coupons shall be executed on behalf of the Issuer by the General
Partner acting in its capacity as sole managing general partner of the Issuer
by the General Partner's Treasurer or any Assistant Treasurer. The signature of
any of these officers on the Securities or any Coupons appertaining thereto may
be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Issuer shall bind the Issuer, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities, together with any Coupons
appertaining thereto, executed by the Issuer, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred
to in Section 301 and an Issuer Order for the authentication and delivery of
such Securities have been delivered to the Trustee, the Trustee in accordance
with the Issuer Order and subject to the provisions hereof and of such
Securities shall authenticate and deliver such Securities. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities and any Coupons appertaining thereto,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertions, executed under the Issuer's corporate seal and
attested by duly authorized officers of the Issuer, delivered by duly
authorized officers of the Issuer to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legally
valid and binding obligations of the Issuer, enforceable against the
Issuer in accordance with their terms, except as enforcement thereof may
be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, arrangement, fraudulent conveyance, fraudulent transfer or
other similar laws relating to or affecting creditors' rights generally,
and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and will
entitle the Holders thereof to the benefits of this Indenture, including
the Guarantee; such Opinion of Counsel need express no opinion as to the
availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Issuer of such Securities and Coupons, if any, have been
complied with; and
(d) this Indenture has been qualified under the Trust Indenture Act;
and
(2) an Officers' Certificate and a Guarantor's Officers' Certificate,
in each case stating that, to the best knowledge of the Persons executing such
certificate, no event which is, or after notice or lapse of time would become,
an Event of Default with respect to any of the Securities shall have occurred
and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Issuer that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue
to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may
execute and deliver to the Trustee and, upon Issuer Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof 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 or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Issuer executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. 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 the provisions thereof, if temporary Securities
are issued, the Issuer shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations of the
same series and containing identical terms and provisions; provided, however,
that no definitive Bearer Security, except as provided in or pursuant to this
Indenture, 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 or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, 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.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Issuer shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Issuer or the Guarantor shall provide for the registration of
the Registered Securities of such series and of transfers of the Registered
Securities of such series. Such Office or Agency shall be the "Security
Registrar" for that series of Securities. Unless otherwise specified in or
pursuant to this Indenture or the Securities, the Trustee shall be the initial
Security Registrar for each series of Securities. The Issuer shall have the
right to remove and replace from time to time the Security Registrar for any
series of Securities; provided that no such removal or replacement shall be
effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Issuer and shall have accepted such
appointment by the Issuer. In the event that the Trustee shall not be or shall
cease to be Security Registrar with respect to a series of Securities, it shall
have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Issuer 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 denominated as authorized in or pursuant to this Indenture, of
a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, 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, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Issuer, the Guarantor (if such Bearer Securities are
Guaranteed Securities) and the Trustee 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 Issuer, the Guarantor (if such Bearer Securities
are Guaranteed Securities) and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security 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 for such
series located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such Office or
Agency for such series in exchange for a Registered Security of such 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 date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with such
Bearer Security, such Coupon shall be returned to the Person so surrendering
the Bearer Security), and interest or Defaulted Interest, as the case may be,
shall 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 shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture. If
provided in or pursuant to this Indenture with respect to Securities of any
series, at the option of the Holder, Registered Securities of such series may
be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Issuer 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 provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Issuer within 90 days of the date the Issuer is so
informed in writing, (ii) the Issuer executes and delivers to the Trustee an
Issuer Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Issuer shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Issuer. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depository or such other Depository as shall be
specified in the Issuer Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officers' Certificate or be
accompanied by an Opinion of Counsel), as shall be specified in the Issuer
Order with respect thereto to the Trustee, as the Issuer's agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities as
described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further,
that (unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Issuer referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such Office or Agency on the next Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall 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 shall 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 global Security
shall be 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 Issuer and the Guarantor,
respectively, evidencing the same debt and entitling the Holders thereof 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 Issuer or
the Security Registrar for such Security) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar for such Security 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, or redemption of Securities, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, the
Issuer shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, 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 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, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and
the same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, 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, subject to the provisions of
this Section 306, the Issuer shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Issuer, the Guarantor (if the Security is
a Guaranteed Security) 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 Issuer,
the Guarantor (if the Security is a Guaranteed Security) or the Trustee that
such Security or Coupon has been acquired by a bona fide purchaser, the Issuer
shall execute and, upon the Issuer's request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, 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 containing identical terms and of
like principal amount 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 foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities
located outside the United States and, unless otherwise provided in or pursuant
to this Indenture, any interest on Bearer Securities and any Additional Amounts
with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer
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, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Issuer and the
Guarantor (if the Security is a Guaranteed Security), whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto 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 such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
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 and Certain Additional
Amounts; Rights to Interest and Certain Additional
Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise
provided in or pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after the close of business
at an Office or Agency for such Security on any Regular Record Date therefor
and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date therefor, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date and
interest shall not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security), at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Issuer or the Guarantor (if the Registered Security is a
Guaranteed Security) may elect to make payment of any Defaulted Interest
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be 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 Issuer or the Guarantor (if
the Registered Security is a Guaranteed Security) shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on such Registered Security and the date of the proposed payment,
and at the same time the Issuer or the Guarantor (if the Registered
Security is a Guaranteed Security), as the case may be, shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when so deposited to be held
in trust for the benefit of the Person 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 Issuer or the Guarantor, as the case may be, of such
Special Record Date and, in the name and at the expense of the Issuer or
the Guarantor, as the case may be, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to the Holder of such
Registered Security (or a Predecessor Security thereof) 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 Issuer or the Guarantor, as the case may be, cause
a similar notice to be published at least once in an Authorized Newspaper
of general circulation in the Borough of Manhattan, The City of New York,
but such publication 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
Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be 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 is surrendered at the Office or
Agency for such Security in exchange for a Registered Security 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 Defaulted
Interest and Defaulted Interest shall not be payable on such proposed
date of payment in respect of the Registered Security issued in exchange
for such Bearer Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture.
(2) The Issuer or the Guarantor (if the Security is a Guaranteed
Security) may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange
on which such Security may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuer or the
Guarantor, as the case may be, to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Issuer, interest on Registered Securities
that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States.
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.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Registered Security with respect to which the Stated
Maturity is prior to such Interest Payment Date), interest with respect to
which the Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall
be paid to the Person in whose name that Registered Security (or one or
more predecessor Registered Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any
Registered Security which is converted, interest with respect to which the
Stated Maturity is after the date of conversion of such Registered
Security shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Issuer, the Guarantor (if the Registered Security is a Guaranteed
Security), the Trustee and any agent of the Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security) or the Trustee may treat the
Person in whose name such Registered Security is registered in the Security
Register as the owner of such Registered Security for the purpose of receiving
payment of principal of, any premium and (subject to Sections 305 and 307)
interest on and any Additional Amounts with respect to such Registered Security
and for all other purposes whatsoever, whether or not any payment with respect
to such Registered Security shall be overdue, and neither the Issuer, nor the
Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee
shall be affected by notice to the contrary.
The Issuer, the Guarantor (if the Bearer Security is a Guaranteed
Security), the Trustee and any agent of the Issuer, the Guarantor (if the
Bearer Security is a Guaranteed Security) or the Trustee may treat the bearer
of any Bearer Security or the bearer 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 any
payment with respect to such Security or Coupon shall be overdue, and neither
the Issuer, nor the Guarantor, the Trustee or any agent of the Issuer, the
Guarantor or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer, the Guarantor (if the global
Security is a Guaranteed Security) or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Issuer, the Guarantor (if the
global Security is a Guaranteed Security), the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion 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, as
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. The Issuer or the
Guarantor (if the Security is a Guaranteed Security) may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Issuer or the Guarantor (if the Security is a
Guaranteed Security) may have acquired in any manner whatsoever, and all
Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All cancelled Securities and Coupons held by the
Trustee shall be disposed of by the Trustee in accordance with its procedures
in effect regarding the disposition of cancelled Securities as of the date of
such disposition, unless by an Issuer Order or Guarantor Order the Issuer or
the Guarantor, as the case may be, directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in
any Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Issuer by an Issuer Order or of the
Guarantor by a Guarantor Order (if the applicable series of Securities is a
series of Guaranteed Securities), this Indenture shall cease to be of further
effect with respect to any series of Securities specified in such Issuer Order
or Guarantor Order and any Coupons appertaining thereto, and the Trustee, on
receipt of an Issuer Order or a Guarantor Order, at the expense of the Issuer
and the Guarantor, 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 appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series 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 of
such series called for redemption and maturing after the relevant
Redemption Date whose surrender has been waived as provided in Section
1107, 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 Issuer and thereafter repaid to the Issuer 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 Issuer, 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 Issuer and the Guarantor (if
the Securities of such series are Guaranteed Securities),
and the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, money in the Currency in which such Securities
are payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional Amounts
with respect to such Securities and any Coupons appertaining thereto, to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Maturity thereof, as the case may be;
(2) the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities) has paid or caused to be paid all other sums
payable hereunder by the Issuer and the Guarantor with respect to the
Outstanding Securities of such series and any Coupons appertaining
thereto; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel and the Guarantor has delivered to the Trustee a
Guarantor's Officers' Certificate (if the Securities of such series are
Guaranteed Securities), 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.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Issuer and the
Guarantor to the Trustee under Section 605 and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Issuer and the Trustee with respect to the
Securities of such series under Sections 305, 306, 403, 1002 and 1003, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section
401(1)(b)), and with respect to any rights to exchange such Securities into
other securities shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 301, either or both of (i) defeasance
of the Securities of or within a series under clause (2) of this Section 402
shall not be applicable with respect to the Securities of such series or (ii)
covenant defeasance of the Securities of or within a series under clause (3)
of this Section 402 shall not be applicable with respect to the Securities of
such series, then such provisions, together with the other provisions of this
Section 402 (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 Issuer may at its
option by Board Resolution, at any time, with respect to such Securities and
any Coupons appertaining thereto, elect to have Section 402(2) or Section
402(3) be applied to such Outstanding Securities and any Coupons appertaining
thereto upon compliance with the conditions set forth below in this Section
402.
(2) Upon the Issuer's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, each of
the Issuer and the Guarantor (if such Securities are Guaranteed Securities)
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto and under the
Guarantee in respect thereof (if applicable), respectively, on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer and the Guarantor (if such Securities are Guaranteed Securities) shall
be deemed to have paid and discharged the entire Indebtedness represented by
such Outstanding Securities and any Coupons appertaining thereto, and under
the Guarantee in respect thereof (if such Securities are Guaranteed
Securities), which shall thereafter be deemed to be "Outstanding" only for the
purposes of clause (5) of this Section 402 and the other Sections of this
Indenture referred to in clauses (i) and (ii) below, and to have satisfied all
of its other obligations under such Securities and any Coupons appertaining
thereto, and under the Guarantee in respect thereof (if such Securities are
Guaranteed Securities), and this Indenture insofar as such Securities and any
Coupons appertaining thereto, and the Guarantee in respect thereof (if such
Securities are Guaranteed Securities), are concerned (and the Trustee, at the
expense of the Issuer and the Guarantor (if such Securities are Guaranteed
Securities), shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and any
Coupons appertaining thereto to receive, solely from the trust fund described
in clause (4) of this Section 402 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on, and Additional Amounts, if any, with respect to, such Securities and
any Coupons appertaining thereto when such payments are due, and any rights of
such Holder to convert or exchange such Securities into Common Stock or other
securities, (ii) the obligations of the Issuer, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee 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 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 401(4)(a) below), and with respect to
any rights to exchange such Securities into other securities, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Section 402. The Issuer may exercise its option under this Section
402(2) notwithstanding the prior exercise of its option under clause (3) of
this Section 402 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Issuer's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, each of
the Issuer and the Guarantor (if the Securities are Guaranteed Securities)
shall be released from its obligations under Sections 1005 to 1011, inclusive,
and to the extent specified pursuant to Section 301, any other covenant
applicable to such Securities, with respect to such Outstanding Securities and
any Coupons appertaining thereto, and the Guarantee in respect thereof (if the
Securities are Guaranteed Securities), on and after the date the conditions set
forth in clause (4) of this Section 402 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 any such 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 Issuer and the Guarantor (if applicable) may
omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(9) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto and the Guarantee in respect
thereof (if the Securities are Guaranteed Securities) shall be unaffected
thereby.
(4) The following shall be the conditions to application of clause
(2) or (3) of this Section 402 to any Outstanding Securities of or within a
series and any Coupons appertaining thereto and the Guarantee (if the
Securities are Guaranteed Securities) in respect thereof:
(a) The Issuer or the Guarantor 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 Section 402 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 Dollars or in such Foreign Currency 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 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, if any) and
interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case,
in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Issuer or
the Guarantor (if the Securities are Guaranteed Securities) 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 and, with respect to
defeasance only, 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 clause (2) of this Section 402,
the Issuer or the Guarantor shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) has received from the Internal
Revenue Service a letter ruling, or there has been published by the
Internal Revenue Service a Revenue Ruling, or (ii) 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 clause (3) of this Section 402,
the Issuer or the Guarantor 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 Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall have delivered to the Trustee an Officers'
Certificate (if applicable) or a Guarantor's Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to
the defeasance or covenant defeasance under clause (2) or (3) of this
Section 402 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section 402(4), 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 Issuer or the Guarantor (if the Securities are
Guaranteed Securities) in connection therewith pursuant to Section 301.
(5) 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 402(5) and Section 403, the "Trustee")
pursuant to clause (4) of Section 402 in respect of any Outstanding
Securities of any series and any Coupons appertaining thereto shall be
held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and
this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, 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 in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 402(4)(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 other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or
(b) a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(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, if any), and interest, if any, on,
and Additional Amounts, if any, with respect to, 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 in which such Security
becomes payable as a result of such election or Conversion Event based on (x)
in the case of payments made pursuant to clause (a) above, the applicable
market exchange rate for such Currency in effect on the second Business Day
prior to each payment date, or (y) with respect to a Conversion Event, the
applicable market exchange rate for such Foreign Currency in effect (as nearly
as feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or 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 Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer
Request, or the Guarantor, as the case may be, upon the Guarantor Request, any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 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
Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to
Section 401 or 402 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 Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, interest and Additional Amounts
for whose payment such money has or Government Obligations have been deposited
with or received by the Trustee; but such money and Government Obligations
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 Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether 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), unless such event is specifically deleted or modified in
or pursuant to the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of such series when such interest
becomes or such Additional Amounts become 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 any premium on any
Security of such series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities) in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of a series of Securities
other than such series), 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 Issuer and the Guarantor (if the Securities of such series are
Guaranteed Securities) by the Trustee or to the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) or
any "significant subsidiary" of the Issuer or the Guarantor in Article 1,
Section 1-02 of Regulation S-X under the Securities Act of 1933, as
amended ("Significant Subsidiary") in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
and such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(b) a decree or order adjudging the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) or
any Significant Subsidiary and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the
Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any Significant Subsidiary or of any substantial part of
the property of the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary, as the
case may be, or ordering the winding up or liquidation of the affairs of
the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary; or
(6) the commencement by the Issuer, the Guarantor (if the Securities
of such series are Guaranteed Securities) or any Significant Subsidiary of a
voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of a voluntary proceeding seeking to be
adjudicated insolvent or the consent by the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any insolvency proceedings against
it, or the filing by the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary of a petition
or answer or consent seeking reorganization or relief under any applicable
law, or the consent by the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or similar official of the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary or any substantial part of the property of the Issuer,
the Guarantor (if the Securities of such series are Guaranteed Securities) or
any Significant Subsidiary or the making by the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary of an assignment for the benefit of creditors, or the taking of
corporate action by the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary in furtherance
of any such action; or
(7) the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities), any Subsidiary in which the Issuer has invested at
least $20,000,000 in capital or any entity in which the Issuer is the general
partner shall fail to pay any principal of, premium or interest on or any
other amount payable in respect of, any recourse Indebtedness that is
outstanding in a principal or notional amount of at least $20,000,000 (or the
equivalent thereof in one or more other currencies), either individually or in
the aggregate (but excluding Indebtedness outstanding hereunder), of the
Issuer and its consolidated Subsidiaries, taken as a whole, when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in any agreement or instrument
relating to such Indebtedness, or any other event shall occur or condition
shall exist under any agreement or instrument evidencing, securing or
otherwise relating to any such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or otherwise to cause, or
to permit the holder or holders thereof ( or a trustee or agent on behalf of
such holders) to cause such Indebtedness to mature prior to its stated
maturity; or
(8) one or more final, non-appealable judgments or orders for the
payment of money aggregating $20,000,000 (or the equivalent thereof in one or
more other currencies) or more are rendered against one or more of the Issuer,
the Guarantor (if the Securities of such series are Guaranteed Securities),
any Subsidiary in which the Issuer has invested at least $20,000,000 in
capital or any entity in which the Issuer is the general partner and remain
unsatisfied and either (i) enforcement proceedings shall have been commenced
by any creditor upon any such judgment or order or (ii) there shall be a
period of at least 60 days after entry thereof during which a stay of
enforcement of any such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such judgment
or order shall not give rise to an Event of Default under this subsection (8)
if and for so long as (A) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the insurer
covering full payment thereof and (B) such insurer has been notified, and has
not disputed the claim made for payment, of the amount of such judgement or
order; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in clause (5)
or (6) of Section 501) occurs and is continuing, then the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of such series may declare the principal (or, if any Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities of such
series, or such lesser amount as may be provided for in the Securities of such
series, to be due and payable immediately, by a notice in writing to the
Issuer and the Guarantor (if the Securities are Guaranteed Securities) (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) 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 of any Security of that series.
At any time after Securities of any series have been accelerated 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 not less
than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Issuer, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and interest thereon and any Additional Amounts with respect thereto at
the rate or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional Amounts
is lawful, interest upon overdue installments of any interest and
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 all other amounts due the Trustee
under Section 606; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest
on, and any Additional Amounts with respect to Securities of such series
which shall have become due solely by such declaration of acceleration,
shall 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 Issuer covenants and the Guarantor (if the Securities are
Guaranteed Securities) covenants, in each case, that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have
become 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 any premium
on any Security at its Maturity,
the Issuer or the Guarantor (if the Securities are Guaranteed Securities), as
the case may be shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining
thereto, the whole amount of money then due and payable with respect to such
Securities and any Coupons appertaining thereto, with interest upon the
overdue principal, any premium and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest and Additional Amounts at the rate or rates borne by or provided for
in such Securities, and, in addition thereto, such further amount of money 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 and all other amounts due to the Trustee under
Section 606.
If the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) fails to pay the money it is required to pay the Trustee pursuant
to the preceding paragraph forthwith upon the demand of the Trustee, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable
in the manner provided by law out of the property of the Issuer or the
Guarantor (if the Securities are Guaranteed Securities) or any other obligor
upon such Securities and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any Coupons appertaining thereto by such appropriate judicial
proceedings as the Trustee 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 such Securities or in aid of the exercise of
any power granted herein or therein, 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 Issuer, the Guarantor (if the Securities
are Guaranteed Securities) or any other obligor upon the Securities or the
property of the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Issuer or the
Guarantor (if the Securities are Guaranteed Securities) for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and
unpaid in respect of the Securities and any Coupons appertaining thereto
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 or counsel) and of the Holders of Securities or
any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies 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 or any 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 of Securities or any Coupons, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any
other amounts due the Trustee under Section 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 any 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 any 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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon 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 any
premium, interest or 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 any Coupons for principal and any premium, interest
and Additional Amounts 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 any premium,
interest and Additional Amounts, respectively;
Third: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series 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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any
other 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
and any Premium, 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, any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts with
respect to such Security or payment of such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security
or Coupon (or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of such Holder if provided in or pursuant to
this Indenture, on the date such repayment is due) and to institute suit for
the enforcement of any such payment, and such right 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 a 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 Issuer, the Guarantor (if the Security is a Guaranteed Security), the
Trustee and each such Holder 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 each such
Holder 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 each and every Holder of a Security or a Coupon
is intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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, to the extent permitted by law,
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 any Holder of a Security or a Coupon
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of 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 and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to, any Security of such series or
any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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 impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Issuer covenants and the Guarantor covenants, in each case, that
(to the extent that it may lawfully do so) it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer and the Guarantor each expressly waives (to the
extent that it may lawfully do so) 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 515 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 Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on or
Additional Amounts, if any, with respect to 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, and, in the case of repayment, on
or after the date for repayment) or for the enforcement of the right, if any,
to convert or exchange any Security into Common Stock or other securities in
accordance with its terms.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(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 reasonably
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 Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or an Issuer Order or of the
Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor
Request or Guarantor Order (in each case, other than delivery of any
Security, together with any Coupons appertaining thereto, to the Trustee
for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution or
by the Guarantor's Board of Directors may be sufficiently evidenced by a
Guarantor's 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 shall be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate or,
if such matter pertains to the Guarantor, a Guarantor's 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 or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(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, 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, during business hours and upon reasonable notice, the books,
records and premises of the Issuer and the Guarantor, 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) subject to the provisions of Section 602 hereof and Sections
315(a) through 315(d) of the Trust Indenture Act, the Trustee shall not
be charged with knowledge of any Event of Default described in Section
501(4), (5), (6), (7), (8) or (9) hereof unless a Responsible Officer of
the Trustee shall have actual knowledge of such Event of Default.
(9) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
Section 602. 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 by mail to
all Holders of Securities of such series entitled to receive reports pursuant
to Section 703(3), 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, if any), or interest, if any, on, or Additional Amounts or any
sinking fund or purchase fund installment with respect to, any Security of
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the best interest
of the Holders of Securities and Coupons of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 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 Securities of such series.
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 Issuer or the Guarantor (if the Securities are
Guaranteed Securities), as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to
the Issuer are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Issuer of the Securities or the proceeds
thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Guarantor or the Issuer, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Issuer or the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed in writing with the Issuer or the Guarantor.
Section 606. Compensation and Reimbursement.
The Issuer and the Guarantor jointly and severally agree:
(1) to pay to the Trustee from time to time such compensation as the
Issuer, the Guarantor and the Trustee shall from time to time agree in
writing for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their 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 themselves against any claim
or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Issuer and
the Guarantor under this Section, the Trustee shall have a Lien prior to the
Securities of any series upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of,
and premium or interest on or any Additional Amounts with respect to Securities
or any Coupons appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
The provisions of this section shall survive the termination of this
Indenture.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, eligible under Section 310(a)(1)
of the Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act and that has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000 subject to supervision or examination by Federal or state
authority. 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.
(1) 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 pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer and the
Guarantor (if the Securities are Guaranteed Securities). If the instrument of
acceptance by a successor Trustee required by Section 609 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 with respect to such
series.
(3) 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 Issuer and the Guarantor (if the Securities are Guaranteed Securities).
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) or any Holder of a
Security of such series who has been a bona fide Holder of a Security of
such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Issuer, the Guarantor
(if the Securities are Guaranteed Securities) or any such Holder, or
(c) 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 Issuer, by or pursuant to a Board Resolution,
or the Guarantor (if the Securities are Guaranteed Securities), by or pursuant
to a Guarantor's Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject to Section 315(e)
of the Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security 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 removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(1) 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 Issuer, by or
pursuant to a Board Resolution, and the Guarantor (if the Securities are
Guaranteed Securities), by or pursuant to a Guarantor's 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) and shall comply with the applicable
requirements of Section 609. 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 Issuer, the Guarantor (if the Securities are Guaranteed
Securities) and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Issuer and the Guarantor (if the Securities
are Guaranteed Securities). If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) or the Holders of
Securities and accepted appointment in the manner required by Section 609, 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 the Securities of such
series.
(2) The Issuer 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
by mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Registered Securities, if any, of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United
States. 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.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Issuer, the Guarantor 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 hereunder of the retiring Trustee;
but, on the request of the Issuer, the Guarantor or such successor Trustee,
such retiring Trustee, upon payment of its charges, shall execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 1003, 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.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
Guarantor (if any of such series of Securities is a series of Guaranteed
Securities), the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
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, 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 that no
Trustee shall be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, 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
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Issuer, the
Guarantor, if applicable, or such successor Trustee, such retiring Trustee,
upon payment of its charges with respect to the Securities of that or those
series to which the appointment of such successor relates and subject to
Section 1003 shall duly assign, transfer and deliver to such successor Trustee,
to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, subject to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Issuer and the Guarantor 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 (1) or (2) of this
Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person 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,
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 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 so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable
to the Issuer with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 306, 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. 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 Issuer and the
Guarantor and, except as provided in or pursuant to this Indenture, shall at
all times be a corporation that would be permitted by the Trust Indenture Act
to act as trustee under an indenture qualified under the Trust Indenture Act,
is authorized under applicable law and by its charter to act as an
Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it 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 all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, the Guarantor and the Issuer. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent, the Guarantor and the Issuer. 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 may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Guarantor
and shall (i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the series
with respect to which such Authenticating Agent shall serve, as their names and
addresses appear in the Security Register, and (ii) if Securities of the series
are issued as Bearer Securities, publish notice of such appointment at least
once in an Authorized Newspaper in the place where such successor
Authenticating Agent has its principal office if such office is located outside
the United States. 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. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Issuer agrees and the Guarantor agrees to pay each Authenticating
Agent from time to time reasonable compensation for its services under this
Section. If the Trustee makes such payments, it shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities 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 in
substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
--------------------------------------,
As Trustee
By__________________________
As Authenticating Agent
By__________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Issuer wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Issuer), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Issuer with respect to such
series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. Issuer and the Guarantor to Furnish Trustee Names
and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Issuer and the Guarantor (with respect to Securities of each series that are
Guaranteed Securities) shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series, a list, in
each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer or the Guarantor (with respect
to Securities of each series that are Guaranteed Securities) 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.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Issuer, the Guarantor and the Trustee that neither the
Issuer, the Guarantor, the Trustee, any Paying Agent or any Security Registrar
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Securities in accordance with
Section 312(c) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing with
the first September 15 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such September 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of
the immediately preceding September 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. Reports by Issuer and Guarantor.
The Issuer and the Guarantor, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Issuer or the
Guarantor, as the case may be, 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
Issuer or the Guarantor, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Issuer or the Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall 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 Issuer or the Guarantor, as the case may be, with the conditions and
covenants of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Issuer or the Guarantor 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.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Issuer with or into any other
Person or Persons (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which either the Issuer will be the continuing
entity or the Issuer or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Issuer, to any other Person (whether
or not affiliated with the Issuer); provided, however, that:
(1) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its properties
and assets to any Person, the entity formed by such consolidation or into
which the Issuer is merged or the Person which acquires by conveyance or
transfer, or which leases, all or substantially all of the properties of the
Issuer shall be a Person organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed by the successor Person
and the Guarantor and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Securities and
the performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
No such consolidation, merger, conveyance, transfer or lease shall be
permitted by this Section unless prior thereto the Guarantor shall have
delivered to the Trustee a Guarantor's Officers' Certificate and an Opinion of
Counsel, each stating that the Guarantor's obligations hereunder shall remain
in full force and effect thereafter.
Section 802. Successor Person Substituted for Issuer.
Upon any consolidation by the Issuer with or merger of the Issuer
into any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Issuer to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Issuer is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as if
such successor Person had been named as the Issuer herein; and thereafter,
except in the case of a lease, the predecessor Person shall be released from
all obligations and covenants under this Indenture, the Securities and the
Coupons.
Section 803. Guarantor May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Guarantor with or into any other
Person or Persons (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which either the Guarantor will be the
continuing entity or the Guarantor or its successor or successors shall be a
party or parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Guarantor, to any other Person
(whether or not affiliated with the Guarantor); provided, however, that:
(1) in case the Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such consolidation
or into which the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, all or substantially all of the
properties and assets of the Guarantor shall be a Person organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed and delivered by the Issuer and the successor Person to the
Trustee, in form satisfactory to the Trustee, the obligation of the Guarantor
under the Guarantee and the performance of every other covenant of this
Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) each of the Guarantor and the successor Person has delivered to
the Trustee a Guarantor's Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
Section 804. Successor Person Substituted for Guarantor.
Upon any consolidation or merger or any conveyance, transfer or lease
of all or substantially all of the properties and assets of the Guarantor to
any Person in accordance with Section 803, the successor Person formed by such
consolidation or into which the Guarantor is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture with the same effect as if such successor Person had been named as
the Guarantor herein, and thereafter, except in the case of a lease to another
Person, the predecessor Person shall be released from all obligations and
covenants under this Indenture.
Section 805. Assumption by Guarantor.
The Guarantor, or a subsidiary thereof that is a Corporation, may
directly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, any premium and interest on and any Additional
Amounts with respect to all the Guaranteed Securities and the performance of
every covenant of this Indenture on the part of the Issuer to be performed or
observed. Upon any such assumption, the Guarantor or such subsidiary shall
succeed to, and be substituted for and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if the Guarantor or
such subsidiary had been named as the Issuer herein and the Issuer shall be
released from all obligations and covenants with respect to the Guaranteed
Securities. No such assumption shall be permitted unless the Guarantor has
delivered to the Trustee (i) a Guarantor's Officers' Certificate and an
Opinion of Counsel, each stating that such assumption and supplemental
indenture comply with this Article, and that all conditions precedent herein
provided for relating to such transaction have been complied with and that, in
the event of assumption by a subsidiary, the Guarantee and all other covenants
of the Guarantor herein remain in full force and effect and (ii) an opinion of
independent counsel that the Holders of Guaranteed Securities or related
Coupons (assuming such Holders are only taxed as residents of the United
States) shall have no materially adverse United States federal tax
consequences as a result of such assumption, and that, if any Securities are
then listed on the New York Stock Exchange, that such Securities shall not be
delisted as a result of such assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Issuer (when authorized by or pursuant to a Board Resolution), the Guarantor
(when authorized by a Guarantor's 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 Issuer or the
Guarantor, and the assumption by any such successor of the covenants of the
Issuer or the Guarantor, as the case may be, contained herein and in the
Securities; or
(2) to add to the covenants of the Issuer or the Guarantor for the
benefit of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to surrender any
right or power herein conferred upon the Issuer or the Guarantor; or
(3) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental
indenture); 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, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities
in uncertificated form, provided any such action shall not adversely affect
the interests of the Holders of Securities of any series or any Coupons
appertaining thereto in any material respect; or
(5) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201 and 301; 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, pursuant to the requirements of
Section 609; or
(9) to cure any ambiguity or 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 adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto 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 Article Four, provided that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(11) to effect the assumption by the Guarantor or a subsidiary
thereof pursuant to Section 805; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities
then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) and the Trustee, the
Issuer (when authorized by or pursuant to an Issuer's Board Resolution), the
Guarantor (when authorized by or pursuant to a Guarantor's Board Resolution),
if applicable, 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 of such series
under this Indenture or of the Securities of such series; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Issuer to pay Additional Amounts
pursuant to Section 1004 (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, change the
redemption provisions or adversely affect the right of repayment at the option
of any Holder as contemplated by Article Thirteen, or change the Place of
Payment, Currency in which the principal of, any premium or interest on, or
any Additional Amounts with respect to any Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder, on
or after the date for repayment or in the case of change in control), 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 (of 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 or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due and
punctual payments of principal of, or any premium or interest on or any
sinking fund requirements or Additional Amounts with respect to, Guaranteed
Securities, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) 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 a Security theretofore or thereafter authenticated and
delivered hereunder and of any Coupon appertaining thereto shall be bound
thereby.
Section 905. 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
Issuer shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 906. 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.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Issuer covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment
is located outside the United States) may be presented or surrendered for
payment, where Securities of such series may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Issuer
or the Guarantor (if any Guaranteed Securities are Outstanding) in respect of
the Securities of such series relating thereto and this Indenture may be
served. If Securities of a series are issuable as Bearer Securities, the
Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) shall
maintain, subject to any laws or regulations applicable thereto, an Office or
Agency in a Place of Payment for such series which is located outside the
United States where Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment; provided, however, that
if the Securities of such series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Issuer or the Guarantor (if any Guaranteed
Securities are Outstanding) shall maintain a Paying Agent in London,
Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of such series are listed on such
exchange. The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) will give prompt written notice to the Trustee of the location,
and any change in the location, of such Office or Agency. If at any time the
Issuer or the Guarantor 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 such
series and any Coupons appertaining thereto may be presented and surrendered
for payment at the place specified for the purpose with respect to such
Securities as provided in or pursuant to this Indenture, and the Issuer and
the Guarantor each hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency 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, if amounts owing with respect to any Bearer Securities shall be
payable in Dollars, payment of principal of, any premium or interest on and
any Additional Amounts with respect to any such Security may be made at the
Corporate Trust Office of the Trustee or any Office or Agency designated by
the Issuer in the City of New York, New York, if (but only if) payment of the
full amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Issuer in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) may also from time to time designate one or more other Offices or
Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer or the Guarantor of its obligation to maintain an
Office or Agency in each Place of Payment for Securities of any series for such
purposes. The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) shall 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 provided in or pursuant to this Indenture,
the Issuer and the Guarantor (with respect to any Guaranteed Securities) each
hereby designates as the Place of Payment for each series of Securities the City
of New York, New York, and initially appoints the office of The Bank of New York
as the Office or Agency of the Issuer or the Guarantor (with respect to any
Guaranteed Securities), as the case may be, in the City of New York, New York
for such purpose. The Issuer or the Guarantor, as the case may be, may
subsequently appoint a different Office or Agency in the City of New York, New
York for the Securities of any series.
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 this
Indenture, then the Issuer 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 Issuer shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay
the principal or any premium, interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and shall promptly notify the Trustee of its action or
failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any 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 or any premium, interest or Additional Amounts so becoming due, such
sum to be held in trust for the benefit of the Persons entitled thereto, and
(unless such Paying Agent is the Trustee) the Issuer will promptly notify the
Trustee of its action or failure so to act.
The Issuer shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as provided
in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, any premium or interest on or any
Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Issuer or the Guarantor (with Securities that are Guaranteed
Securities) may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Issuer Order
or Guarantor Order, as the case may be, direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Issuer 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 Issuer 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 herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such
principal or any such premium or interest or any such Additional Amounts shall
have become due and payable shall be paid to the Issuer on Issuer Request (or
if deposited by the Guarantor, paid to the Guarantor on Guarantor Request), or
(if then held by the Issuer) shall be discharged from such trust; and the
Holder of such Security or any Coupon appertaining thereto shall thereafter,
as an unsecured general creditor, look only to the Issuer and the Guarantor
(if the Securities are Guaranteed Securities) for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer 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 Issuer cause to
be published once, in an Authorized Newspaper in each Place of Payment for
such series or to be mailed to Holders of Registered Securities of such
series, or both, 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 or mailing nor shall it be later than two years after such
principal and any premium or interest or Additional Amounts shall have become
due and payable, any unclaimed balance of such money then remaining will be
repaid to the Issuer or the Guarantor, as the case may be.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) agree to pay to the Holder of any such Security or any Coupon
appertaining thereto Additional Amounts as provided in or pursuant to this
Indenture or such Securities. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or any Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established hereby or pursuant hereto 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 provision hereof shall
not be construed as excluding Additional Amounts in those provisions hereof
where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, 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 such series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to
each date of payment of principal or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Issuer or the Guarantor, as the case may be, shall furnish to
the Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and premium, if
any, or interest on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such 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 or Coupons, and the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) agree to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. The Issuer and the Guarantor each covenant 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 in reliance on any Officers' Certificate furnished pursuant to
this Section.
Section 1005. Limitations on Incurrence of Debt.
(a) The Issuer will not, and will not permit any Subsidiary to, incur
any Indebtedness, other than Permitted Debt, if, immediately after giving
effect to the incurrence of such additional Indebtedness, the aggregate
principal amount of all outstanding Indebtedness of the Issuer, and of its
Subsidiaries determined at the applicable proportionate interest of the Issuer
in each such Subsidiary, determined in accordance with GAAP, is greater than
60% of the sum of (i) the Total Assets as of the end of the calendar quarter
covered in the Issuer's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission prior to the
incurrence of such additional Indebtedness or, if the Issuer is not then
subject to the reporting requirements of the Exchange Act, as of its most
recent calendar quarter and (ii) any increase in the Total Assets since the
end of such quarter, including, without limitation, any increase in Total
Assets resulting from the incurrence of such additional Indebtedness (the
Total Assets adjusted by such increase are referred to as the "Adjusted Total
Assets").
(b) In addition to the limitation set forth in subsection (a) of this
Section 1005, the Issuer will not, and will not permit any Subsidiary to,
incur any Indebtedness, other than Permitted Debt, if, for the period
consisting of the four consecutive fiscal quarters most recently ended prior
to the date on which such additional Indebtedness is to be incurred, the ratio
of Consolidated Income Available for Debt Service to the Annual Service Charge
shall have been less than 1.5 to 1, on a pro forma basis after giving effect
to the incurrence of such Indebtedness and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Issuer or its Subsidiaries since the first
day of such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of
such period, (ii) the repayment or retirement of any other Indebtedness by the
Issuer or its Subsidiaries since the first day of such four-quarter period had
been incurred, repaid or retained at the beginning of such period (except
that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily
balance of such Indebtedness during such period), (iii) any income earned as a
result of any increase in Adjusted Total Assets since the end of such
four-quarter period had been earned, on an annualized basis, for such period,
and (iv) in the case of an acquisition or disposition by the Issuer or any of
its Subsidiaries of any asset or group of assets since the first day of such
four-quarter period, including, without limitation, by merger, stock purchase
or sale, or asset purchase or sale, such acquisition or disposition or any
related repayment of Indebtedness had occurred as of the first day of such
period with the appropriate adjustments with respect to such acquisition or
disposition being included in such pro forma calculation of Consolidated
Income Available for Debt Service to the Annual Service Charge.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 1005, the Issuer will not, and will not permit any
Subsidiary to, incur any Indebtedness secured by any Lien of any kind upon any
of the property of the Issuer or any of its Subsidiaries (the "Secured Debt")
if, immediately after giving effect to the incurrence of such additional
Secured Debt, the aggregate principal amount of all outstanding Secured Debt
of the Issuer, and of its Subsidiaries determined at the applicable
proportionate interest of the Issuer in each such Subsidiary, is greater than
40% of the Adjusted Total Assets.
Section 1006. Maintenance of Total Unencumbered Assets.
The Issuer will maintain Total Unencumbered Assets of not less than
150% of the aggregate principal amount of all outstanding Unsecured Debt
Section 1007. Maintenance of Properties.
The Issuer 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 Issuer may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the
Issuer or any Subsidiary from selling or otherwise disposing for value any of
its properties in the ordinary course of its business.
Section 1008. Insurance.
The Issuer 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 financially sound and reputable insurers
of recognized responsibility.
Section 1009. Existence.
Subject to Article Eight, the Issuer shall do or cause to be done all
things necessary to preserve and keep in full force and effect its partnership
existence and that of each Subsidiary and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Issuer to preserve any such right or franchise if the Issuer or
any Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of its business or the business of such Subsidiary
and that the loss thereof is not disadvantageous in any material respect to
any Holder.
Section 1010. Payment of Taxes and Other Claims.
The Issuer 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 them or any Subsidiary or upon the
income, profits or property of the Issuer 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 Issuer or any Subsidiary; provided,
however, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1011. Provision of Financial Information.
Whether or not the Issuer is subject to Section 13 or 15(d) of the
Exchange Act and for so long as any Securities are outstanding, the Issuer
will, to the extent permitted under the Exchange Act, file with the Commission
the annual reports, quarterly reports and other documents which the Issuer
would have been required to file with the Commission pursuant to such Section
13 or 15(d) (the "Financial Statements") if the Issuer were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Issuer would have been required so
to file such documents if the Issuer were so subject.
In addition, if the Issuer is no longer required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, the Issuer
will also in any event (x) within 15 days after each Required Filing Date (i)
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders copies of the annual reports
and quarterly reports which the Issuer would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Issuer were subject to such Sections, and (ii) file with the Trustee copies of
the annual reports, quarterly reports and other documents which the Issuer
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Issuer were subject to such Sections and (y)
if filing such documents by the Issuer with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder.
Section 1012. Waiver of Certain Covenants.
The Issuer or the Guarantor, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 1005, 1006, 1007, 1008, 1009, 1010 or 1011 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision
or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Issuer and the
Guarantor and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
Section 1013. Issuer Statement as to Compliance; Notice of Certain
Defaults.
(1) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained
in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the General Partner acting in its capacity as the sole general
partner of the Issuer, stating that
(a) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Issuer has complied with all the conditions and covenants imposed on
it under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and status thereof,
and (b) no event has occurred and is continuing which is, or after notice
or lapse of time or both would become, an Event of Default, or, if such
an event has occurred and is continuing, specifying each such event known
to him and the nature and status thereof.
(2) The Issuer shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default
pursuant to clause (4) of Section 501.
Section 1014. Guarantor Statement as to Compliance; Notice of Certain
Defaults.
(1) The Guarantor shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained
in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such year and
of performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Guarantor has complied with conditions and covenants imposed on it
under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and status thereof,
and (b) no event has occurred and is continuing which constitutes, or
which after notice or lapse of time or both would become, an Event of
Default, or, if such an event has occurred and is continuing, specifying
each such event known to him and the nature and status thereof.
(2) The Guarantor shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice
or lapse of time or both would become an Event of Default pursuant to clause
(4) of Section 501.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Issuer as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Issuer of (a) less than all of the Securities of any
series or (b) all of the Securities of any series, with the same issue date,
interest rate or formula, Stated Maturity and other terms, the Issuer shall,
at least 60 days prior to the Redemption Date fixed by the Issuer (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.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other 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 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 of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security
of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Issuer 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 Securities redeemed or to be redeemed only in part,
to the portion of the principal of such Securities which has been or is to be
redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the
Holders of Securities to be redeemed. Failure to give notice by mailing in the
manner herein provided to the Holder of any Registered Securities 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 Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(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 of such Security will
receive, without 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 shall become
due and payable upon each such Security or portion thereof to be redeemed,
and, if applicable, that interest thereon shall cease to accrue on and after
said date,
(6) the place or places 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 any accrued interest and Additional Amounts pertaining thereto,
(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 Issuer, the Trustee 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 the Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Issuer, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate and the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a Paying Agent (or, if the Issuer is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date, unless otherwise specified pursuant to Section 301 or
in the Securities of such series) any accrued interest on and Additional
Amounts with respect thereto, all such 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, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall 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 Issuer at the Redemption Price, together with
any accrued interest and Additional Amounts to the Redemption Date; provided,
however, that, except as otherwise provided in or pursuant to this Indenture
or the Bearer Securities of such series, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable only upon presentation and surrender of Coupons for such interest
(at an Office or Agency located outside the United States except as otherwise
provided in Section 1002), and provided, further, that, except as otherwise
specified in or pursuant to this Indenture or the Registered Securities of
such series, 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 Regular Record Dates therefor 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 Issuer 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 any interest or Additional Amounts
represented by Coupons shall be payable only upon presentation and surrender
of those Coupons at an Office or Agency for such Security located outside of
the United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor
in the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Issuer or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and the Issuer
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series, containing identical terms and provisions, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Security in global form is so surrendered,
the Issuer shall execute, and the Trustee shall authenticate and deliver to
the U.S. Depository or other Depository for such Security in global form as
shall be specified in the Issuer Order with respect thereto to the Trustee,
without service charge, a new Security in global form in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Security
in global form 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
permitted or required in or pursuant to this Indenture or any Security of such
series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 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 and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuer may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series to be made pursuant
to the terms of such Securities (1) deliver Outstanding Securities of such
series (other than any of such Securities previously called for redemption or
any of such Securities in respect of which cash shall have been released to
the Issuer), together in the case of any Bearer Securities of such series with
all unmatured Coupons appertaining thereto, and (2) apply as a credit
Securities of such series which have been redeemed either at the election of
the Issuer pursuant to the terms of such series of Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, provided that such series of Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 1202, the principal amount of Securities of such
series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Issuer Request, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Issuer from time to time pay over and deliver to the Issuer any
cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Issuer to the Trustee of Securities of that series purchased by the
Issuer having an unpaid principal amount equal to the cash payment requested
to be released to the Issuer.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Issuer shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
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 credited
and not theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Issuer shall thereupon be obligated to pay the amount therein
specified. Not less than 60 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Issuer
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.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes of
Section 309, shall not operate as a payment, redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the Issuer, at
its option, shall deliver or surrender the same to the Trustee with a
directive that such Securities be cancelled. Notwithstanding anything to the
contrary contained in this Section 1301, in connection with any repayment of
Securities, the Issuer may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Issuer on repayment of such Securities, and the
obligation of the Issuer to pay the repayment price of such Securities shall
be satisfied and discharged to the extent such payment is so paid by such
purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for
such amount on such reasonable basis of exchange and as of the record date
with respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Issuer or the Guarantor may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
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
Act 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.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the City of New York, New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States 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.
(2) In case at any time the Issuer (by or pursuant to a Board
Resolution), the Guarantor (if the Securities are Guaranteed Securities), by
or pursuant to a Guarantor's 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 mailed notice of or made the first publication of
the notice of such meeting within 21 days after receipt of such request
(whichever shall be required pursuant to Section 106) or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Issuer,
the Guarantor, if applicable, or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the City of New York, New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in clause
(1) 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, any representatives of the
Guarantor and its counsel and any representatives of the Issuer 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 the meeting with respect to a consent or waiver which may be
given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons holding or
representing the specified percentage in principal amount of the Outstanding
Securities of the series will 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(1), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only 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 Act which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented
at the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such 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.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Issuer or by Holders of Securities as provided in Section 1502(2), in
which case the Issuer, the Guarantor 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.
(3) 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 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.
(4) 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 triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 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 Issuer and the Guarantor, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Guarantee.
The Guarantee set forth in this Article Sixteen shall only be in
effect with respect to Securities of a series to the extent such Guarantee is
made applicable to such series in accordance with Section 301. The Guarantor
hereby unconditionally guarantees to each Holder of a Guaranteed Security
authenticated and delivered by the Trustee the due and punctual payment of the
principal of, any premium and interest on, and any Additional Amounts with
respect to such Guaranteed Security, whether at maturity, by acceleration,
redemption, repayment or otherwise, in accordance with the terms of such
Security and of this Indenture. In case of the failure of the Issuer
punctually to pay any such principal, premium, interest or Additional Amounts,
the Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at maturity, upon
acceleration, redemption, repayment or otherwise, and as if such payment were
made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be
as principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Issuer or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to any
such Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium and interest on, and any
Additional Amounts required with respect to, the Guaranteed Securities and the
complete performance of all other obligations contained in the Guaranteed
Securities.
This Guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time payment on any Guaranteed Security, in whole
or in part, is rescinded or must otherwise be restored to the Issuer or the
Guarantor upon the bankruptcy, liquidation or reorganization of the Issuer or
otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Issuer in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of, any premium and interest on, and any Additional
Amounts required with respect to, all Guaranteed Securities shall have been
paid in full.
* * * * *
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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested to, all as of the day and year first above
written.
RECKSON OPERATING PARTNERSHIP, L.P.,
as Issuer
By: Reckson Associates Realty Corp.,
as Managing General Partner
By /s/ Michael Maturo
------------------------------------
Name: Michael Maturo
Title: Executive Vice President
Attest:
/s/ Jason M. Barnett
- ---------------------------
Name: Jason M. Barnett
Title: Assistant Secretary
RECKSON ASSOCIATES REALTY CORP.,
as Guarantor
By /s/ Michael Maturo
-------------------------------------
Name: Michael Maturo
Title: Executive Vice President
Attest:
/s/ Jason M. Barnett
- ---------------------------
Name: Jason M. Barnett
Title: Assistant Secretary
THE BANK OF NEW YORK ,
------------------------------------
as Trustee
By /s/ Remo J. Reale
--------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
STATE OF ___________)
: ss.:
COUNTY OF __________)
On the _____ day of ________, 199_, before me personally came
_________ ___________, to me known, who, being by me duly sworn, did depose
and say that he is the ______________________ of Reckson Associates Realty
Corp., acting in its capacity as the managing general partner of Reckson
Operating Partnership, L.P., a Delaware limited partnership, one of the
persons described in and who executed the foregoing instrument; and that he
signed his name thereto by authority of the managing general partner of said
Operating Partnership.
____________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ___________)
: ss.:
COUNTY OF __________)
On the _____ day of _______, 199_, before me personally came ________
___________, to me known, who, being by me duly sworn, did depose and say that
he is the ____________________ of Reckson Associates Realty Corp., a Maryland
corporation, one of the persons described in and who executed the foregoing
instrument; and that he signed his name thereto by like authority.
____________________________
Notary Public
[NOTARIAL SEAL]
Exhibit 5
Brown & Wood LLP
One World Trade Center
New York, New York 10048
March 26, 1999
Reckson Associates Realty Corp.
Reckson Operating Partnership, L.P.
225 Broadhollow Road
Melville, New York 11747
Ladies and Gentlemen:
This opinion is furnished in connection with the Registration Statement
on Form S-3 (File No. 333-67129) filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the registration of Debt Securities of
Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Operating Partnership"), in an aggregate initial public offering price not to
exceed $500,000,000 (the "Debt Securities"). The Registration Statement was
declared effective by the Commission on March 11, 1999. On March 23, 1999, the
Operating Partnership made an initial public offering of its senior unsecured
notes, comprised of $100,000,000 aggregate principal amount of 7.40% Notes due
2004 (the "2004 Notes") and $200,000,000 aggregate principal amount of 7.75%
Notes due 2009 (the "2009 Notes" and together with the 2004 Notes, the
"Notes"), on terms set forth in a Prospectus Supplement dated March 23, 1999
to the Prospectus dated March 16, 1999 (collectively, the "Prospectus"). The
Notes will be issued pursuant to an indenture dated March 26, 1999 among the
Operating Partnership, as issuer, Reckson Associates Realty Corp. (the
"Company"), as guarantor, and The Bank of New York, as trustee (the
"Indenture").
In connection with rendering this opinion, we have examined the
Certificate of Limited Partnership and the Amended and Restated Agreement of
Limited Partnership, as amended, of the Operating Partnership and the Articles
of Incorporation and the Bylaws, as amended, of the Company; records of
corporate proceedings of the Company; the Registration Statement; the
Indenture; the forms of the Notes; the Prospectus; and such other
certificates, receipts, records and documents as we considered necessary for
the purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Notes have been
duly authorized by all necessary partnership action of the Operating
Partnership, and when the Notes have been duly executed, authenticated and
delivered against consideration therefor as contemplated in the Prospectus,
the Notes will constitute valid and legally binding obligations of the
Operating Partnership and registered holders of the Notes will be entitled to
the benefits of the Indenture; provided, however, that the foregoing opinion
is subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights generally, and to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
We are attorneys admitted to practice in the State of New York. We
express no opinion concerning the laws of any jurisdiction other than the
federal laws of the United States of America, the Revised Uniform Limited
Partnership Act of the State of Delaware and the laws of the State of New
York.
We hereby consent to the filing with the Commission of this opinion in a
Current Report on Form 8-K.
Very truly yours,
/s/ Brown & Wood LLP
Exhibit 10.1
RECKSON OPERATING PARTNERSHIP, L.P.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
PAGE
UNDERWRITING AGREEMENT.........................................................1
SECTION 1 Representations and Warranties......................................3
(a) Representations and Warranties by the Operating Partnership...........3
(1) Compliance with Registration Requirements........................3
(2) Incorporated Documents...........................................4
(3) Independent Accountants..........................................5
(4) Financial Statements.............................................5
(5) No Material Adverse Change in Business...........................5
(6) Good Standing of the Company.....................................6
(7) Good Standing of the Operating Partnership.......................6
(8) Good Standing of the Subsidiaries................................6
(9) Capitalization of Operating Partnership..........................7
(10) Authorization of Debt Securities and Indenture...................7
(11) Descriptions of the Underwritten Securities and
the Indenture....................................................7
(12) Authorization of this Underwriting Agreement and
Terms Agreement..................................................8
(13) Absence of Defaults and Conflicts................................8
(14) Absence of Labor Dispute.........................................9
(15) Absence of Proceedings...........................................9
(16) Accuracy of Exhibits.............................................9
(17) REIT Qualification...............................................9
(18) Investment Company Act...........................................9
(19) Intellectual Property............................................9
(20) Absence of Further Requirements.................................10
(21) Possession of Licenses and Permits..............................10
(22) Title to Property...............................................10
(23) Environmental Laws..............................................11
(24) Tax Returns.....................................................12
(25) Environmental Consultants.......................................12
(26) Title Insurance.................................................12
(27) Absence of Regulation M Violation...............................12
(28) Year 2000 Problem...............................................13
(b) Officers' Certificates...............................................13
SECTION 2 Sale and Delivery to Underwriters; Closing.........................13
(a) Underwritten Securities..............................................13
(b) Option Underwritten Securities.......................................13
(c) Payment..............................................................14
(d) Denominations; Registration..........................................14
SECTION 3 Covenants of the Operating Partnership.............................15
(a) Compliance with Securities Regulations and Commission Requests.......15
(b) Filing of Amendments.................................................15
(c) Delivery of Registration Statements..................................15
(d) Delivery of Prospectuses.............................................16
(e) Continued Compliance with Securities Laws............................16
(f) Blue Sky Qualifications..............................................16
(g) Earnings Statement...................................................17
(h) Reporting Requirements...............................................17
(i) Restriction on Sale of Securities....................................17
(j) REIT Qualification...................................................17
(k) Use of Proceeds......................................................17
(l) Exchange Act Filings.................................................17
(m) No Manipulation of Market for Securities.............................17
SECTION 4 Payment of Expenses................................................18
(a) Expenses.............................................................18
(b) Termination of Agreement.............................................18
SECTION 5 Conditions of Underwriters' Obligations............................18
(a) Effectiveness of Registration Statement..............................19
(b) Opinion of Counsel for the Operating Partnership.....................19
(c) Opinion of Counsel for Underwriters..................................19
(d) Officers' Certificate................................................19
(e) Accountant's Comfort Letter..........................................20
(f) Bring-down Comfort Letter............................................20
(g) Ratings..............................................................20
(h) Approval of Listing..................................................20
(j) Over-Allotment Option................................................20
(k) Additional Documents.................................................21
(l) Termination of Terms Agreement.......................................21
SECTION 6 Indemnification....................................................21
(a) Indemnification of Underwriters......................................21
(b) Indemnification of Operating Partnership.............................22
(c) Actions against Parties; Notification; Settlement without
Consent if Failure to Reimburse......................................23
SECTION 7 Contribution.......................................................23
SECTION 8 Representations, Warranties and Agreements to Survive Delivery.....24
SECTION 9 Termination........................................................25
(a) Underwriting Agreement...............................................25
(b) Terms Agreement......................................................25
(c) Liabilities..........................................................25
SECTION 10 Default by One or More of the Underwriters.........................25
SECTION 11 Notices............................................................26
SECTION 12 Parties............................................................26
SECTION 13 GOVERNING LAW AND TIME.............................................27
SECTION 14 Effect of Headings.................................................27
RECKSON OPERATING PARTNERSHIP, L.P.
(a Delaware limited partnership)
Debt Securities
UNDERWRITING AGREEMENT
March 23, 1999
GOLDMAN, SACHS & CO.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Reckson Operating Partnership, L.P., a Delaware limited partnership
(the "Operating Partnership"), proposes to issue and sell up to $500,000,000
aggregate initial public offering price of its debt securities ("Debt
Securities") from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale.
The terms and rights of any particular issuance of Debt Securities
shall be as specified in the Terms Agreement (as defined below) relating
thereto and in or pursuant to the indenture and any supplements or amendments
thereto (the "Indenture") identified in such Terms Agreement.
Whenever the Operating Partnership determines to make an offering of
Debt Securities through Goldman, Sachs & Co. ("Goldman Sachs") or through an
underwriting syndicate managed by Goldman Sachs, Goldman Sachs and the
Operating Partnership will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Debt Securities to, and the purchase and
offering thereof by, Goldman Sachs and such other underwriters, if any,
selected by Goldman Sachs (the "Underwriters", which term shall include
Goldman Sachs, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof); provided, that, the Operating Partnership is not
obligated, and shall have complete and absolute discretion to determine if and
when, to make any offering, to make any offering through Goldman Sachs or any
other person, or to enter into any Terms Agreement. Prior to execution of a
Terms Agreement, this Underwriting Agreement shall not be construed as an
obligation of the Operating Partnership to sell any Debt Securities or as an
obligation of any of the Underwriters to purchase Debt Securities. The
obligation of the Operating Partnership to issue and sell any Debt Securities
and the obligation of any of the Underwriters to purchase any Debt Securities
shall be evidenced by the Terms Agreement with respect to the Underwritten
Securities (as defined below) specified therein. The Terms Agreement relating
to the offering of Debt Securities shall specify the aggregate principal
amount of Debt Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof), the name of any
Underwriter other than Goldman Sachs acting as co-manager in connection with
such offering, the aggregate principal amount of Initial Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the
Operating Partnership has agreed to grant to the Underwriters an option to
purchase additional Debt Securities to cover over-allotments, if any, and
aggregate principal amount of Debt Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of
an exchange of any standard form of written telecommunication between the
Operating Partnership and Goldman Sachs, acting for itself and, if applicable,
as representative of any other Underwriters. Each offering of Underwritten
Securities through Goldman Sachs as sole Underwriter or through an
underwriting syndicate managed by Goldman Sachs will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
Reckson Associates Realty Corp., a Maryland corporation (the
"Company") and the Operating Partnership have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-67129), for the registration of certain securities, including the
Debt Securities, under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415
of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company and the Operating Partnership have filed
such post-effective amendments thereto as may be required prior to the
execution of the applicable Terms Agreement. Such registration statement (as
so amended, if applicable) has been declared effective by the Commission. Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the
1933 Act Regulations (the "Rule 434 Information"), is referred to herein as
the "Registration Statement"; and the final prospectus constituting a part
thereof and the applicable prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters
by the Operating Partnership for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Operating Partnership files a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462(b) Registration Statement"), then, after
such filing, all references to "Registration Statement" shall be deemed to
include the Rule 462(b) Registration Statement; provided, however, a
prospectus supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of the Underwritten Securities to which it
relates, and provided, further, that if the Operating Partnership elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the
Operating Partnership in reliance upon Rule 434 of the 1933 Act Regulations,
and all references in this Underwriting Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the registration
statement became effective and any prospectus that omitted, as applicable, the
Rule 430A Information, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the execution and delivery of the applicable Terms
Agreement. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR"). Capitalized terms used but not
otherwise defined herein shall have the meanings given to those terms in the
Prospectus.
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or
"stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is or
deemed to be incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be; and all references
in this Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act which is or
is deemed to be incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be.
The term "Subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock, partnership or membership interests, as the
case may be, of which is owned or controlled, directly or indirectly, by the
Operating Partnership or by one or more other Subsidiaries of the Operating
Partnership.
SECTION 1. Representations and Warranties.
(a) REPRESENTATIONS AND WARRANTIES BY THE OPERATING PARTNERSHIP. The
Operating Partnership represents and warrants to Goldman Sachs, as of the date
hereof, and to each Underwriter named in the applicable Terms Agreement, as of
the date thereof, as of the Closing Time (as defined below) and, if
applicable, as of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Operating
Partnership meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Operating Partnership, are contemplated by the
Commission or the state securities authority of any jurisdiction, and any
request on the part of the Commission for additional information has been
complied with. No order preventing or suspending the use of the Prospectus
has been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Operating Partnership threatened by the Commission
or the state securities authority of any jurisdiction.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the Operating Partnership's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission under the Indenture Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, and at each Representation
Date, the Prospectus, and any amendments and supplements thereto did not
and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If the Operating Partnership elects to rely upon Rule 434 of
the 1933 Act Regulations, the Operating Partnership will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement, or the
Prospectus made in reliance upon and in conformity with information
furnished to the Operating Partnership in writing by any Underwriter
through Goldman Sachs expressly for use in the Registration Statement or
the Prospectus.
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and the
1933 Act Regulations and, if applicable, each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with
the offering of Underwritten Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Securities, the Operating Partnership
has complied or will comply with the requirements of Rule 111 under the
1933 Act Regulations relating to the payment of filing fees therefor.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus and at each Representation Date, or during the period specified
in Section 3(e), did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Operating
Partnership included, or incorporated by reference, in the Registration
Statement and the Prospectus, together with the related schedules and
notes, as well as those financial statements, schedules and notes of any
other entity acquired or to be acquired by the Operating Partnership
included therein, present fairly the financial position of the respective
entity or entities or group presented therein at the respective dates
indicated and the statement of operations, stockholders' equity and cash
flows of such entity, as the case may be, for the periods specified.
Except as otherwise stated in the Registration Statement, such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly, in accordance with GAAP, the information required to be
stated therein. In addition, any pro forma financial information and the
related notes thereto included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma information and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof were then reasonable and the adjustments used
therein were then appropriate to give effect to the transactions and
circumstances referred to therein. All historical financial statements and
information and all pro forma financial statements and information
relating to the Operating Partnership or any entity acquired or to be
acquired by the Operating Partnership required by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations are included,
or incorporated by reference, in the Registration Statement and the
Prospectus.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of the
Operating Partnership and the Subsidiaries considered as one enterprise
whether or not arising in the ordinary course of business, which would be
material to the Operating Partnership, taken as a whole (anything which
would be material to the Operating Partnership taken as a whole, being
hereinafter referred to as "Material;" and such a material adverse change,
a "Material Adverse Effect"), (B) no casualty loss or condemnation or
other adverse event with respect to any of the interests held directly or
indirectly in any of the real properties or real property interests,
including without limitation, any interest or participation, direct or
indirect, in any mortgage obligation owned, directly or indirectly, by the
Operating Partnership or any Subsidiary (the "Properties") has occurred
which would be Material, (C) there have been no transactions or
acquisitions entered into by the Operating Partnership or any Subsidiary,
other than those in the ordinary course of business, which would be
Material, (D) except for regular quarterly distributions on units of the
Operating Partnership (the "Units"), there has been no dividend or
distribution of any kind declared, paid or made by the Operating
Partnership with respect to its Units, and (E) there has been no increase
in the long term debt or decrease in the capital of the Operating
Partnership or any Subsidiary.
(6) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Maryland and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under, or
as contemplated under this Underwriting Agreement and the applicable Terms
Agreement. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(7) Good Standing of the Operating Partnership. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware, with
partnership power and authority to own, lease and operate its properties,
to conduct the business in which it is engaged and proposes to engage as
described in the Prospectus and to enter into and perform its obligations
under this Agreement and the applicable Terms Agreement. The Operating
Partnership is duly qualified or registered as a foreign partnership and
is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect. The Company
is the sole general partner of the Operating Partnership. The Amended and
Restated Agreement of Limited Partnership of the Operating Partnership,
dated June 2, 1995, as amended through December 6, 1995 (the "Operating
Partnership Agreement"), is in full force and effect.
(8) Good Standing of the Subsidiaries. Each Subsidiary that is a
"significant subsidiary" as such term is defined in Section 1-02 of
Regulation S-X (each a "Significant Subsidiary," and collectively, the
"Significant Subsidiaries") is listed on Exhibit B hereto and has been
duly organized and is validly existing as a corporation, limited
partnership, limited liability company or other entity, as the case may
be, in good standing under the laws of the state of its jurisdiction of
incorporation or organization, as the case may be, with the requisite
power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as
described in the Prospectus. Each such entity is duly qualified or
registered as a foreign corporation, limited partnership or limited
liability company or other entity, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock or other
equity interests of each such entity has been duly authorized and validly
issued and is fully paid and non-assessable, has been offered and sold in
compliance with all applicable laws (including, without limitation,
federal or state securities laws) and are owned, directly or indirectly,
by the Operating Partnership, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any capital
stock or other equity interests of such entities and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such capital stock or other equity interests or
any other securities of such entities, except as disclosed in the
Prospectus.
(9) Capitalization of Operating Partnership. The capitalization of
the Operating Partnership is as set forth in the Prospectus as of the date
referenced therein. All the issued and outstanding Units have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all applicable laws
(including, without limitation, federal and state securities laws). There
are no Units reserved for any purpose and there are no outstanding
securities convertible into or exchangeable for any Units and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for Units, except for rights granted to the
partners in Omni Partners, L.P. (the "Omni Partnership") and except for
the Merger Agreement, dated December 8, 1998 by and among the Company, the
Operating Partnership, Metropolitan Partners LLC and Tower Realty Trust,
Inc. (the "Tower Merger Agreement").
(10) Authorization of Debt Securities and Indenture. The Underwritten
Securities have been duly authorized by the Operating Partnership, and,
when issued and delivered pursuant to this Agreement and the applicable
Terms Agreement against payment of the requisite consideration therefor,
such Underwritten Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Operating Partnership entitled to the benefits provided
by the Indenture, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Indenture has been duly qualified under the Trust Indenture Act and has
been duly authorized by the Operating Partnership and, at the Closing Time
and each Date of Delivery for such Underwritten Securities will constitute
a valid and legally binding agreement, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(11) Descriptions of the Underwritten Securities and the Indenture.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the Indenture, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement. The form of debt security
to be used to evidence the Underwritten Securities will be in due and
proper form and will comply with all applicable legal requirements.
(12) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Operating Partnership.
(13) Absence of Defaults and Conflicts. Neither the Operating
Partnership nor any Subsidiary is in violation of its charter, by-laws,
certificate of limited partnership or partnership agreement or other
organizational document, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which each entity is a party or by which or any of them may be bound, or
to which any of its property or assets may be bound or subject
(collectively, "Agreements and Instruments"), except for such violations
or defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement, the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Operating Partnership in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and sale
of the Underwritten Securities and the use of the proceeds from the sale
of the Underwritten Securities as described under the caption "Use of
Proceeds") and compliance by the Operating Partnership with its
obligations hereunder and thereunder have been duly authorized by all
necessary partnership action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Operating
Partnership or any Subsidiary pursuant to, any Agreements and Instruments,
except for such conflicts, breaches, defaults, Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the charter, by-laws or the organizational documents of the Operating
Partnership or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Operating Partnership or any Subsidiary or any of their assets,
properties or operations, except for such violations that would not have a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
material portion of such indebtedness by the Operating Partnership or any
Subsidiary.
(14) Absence of Labor Dispute. No labor dispute with the employees of
the Operating Partnership or any Subsidiary exists or, to the knowledge of
the Operating Partnership, is imminent, and the Operating Partnership is
not aware of any existing or imminent labor disturbance by the employees
of any of its or any Subsidiary's principal suppliers, manufacturers,
customers or contractors, which dispute or disturbance, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(15) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the knowledge of the
Operating Partnership threatened against or affecting the Operating
Partnership or any Subsidiary or any of their respective assets,
properties or operations or any officer or director of the Company which
is required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the consummation of this
Underwriting Agreement, the applicable Terms Agreement, the Indenture or
the transactions contemplated herein or therein. The aggregate of all
pending legal or governmental proceedings to which the Operating
Partnership or any Subsidiary is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed as required
and the descriptions thereof or references thereto are correct in all
Material respects.
(17) REIT Qualification. At all times since January 1, 1995 the
Company has been, and upon the sale of the applicable Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and its proposed method of operation will enable it to continue
to meet the requirements for taxation as a real estate investment trust
under the Code, and no actions have been taken (or not taken which are
required to be taken) which would cause such qualification to be lost.
(18) Investment Company Act. Each of the Company, the Operating
Partnership and any Significant Subsidiary is not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(19) Intellectual Property. To the knowledge of the Operating
Partnership, none of the Operating Partnership or any Subsidiary is
required to own, possess or obtain the consent of any holder of any
trademarks, service marks, trade names or copyrights not now lawfully
owned, possessed or licensed in order to conduct the business now operated
by such entity, and none of the Operating Partnership or any Subsidiary
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any such
proprietary rights, and which infringement or conflict (if the subject of
any unfavorable decisions, ruling or finding) singly or in the aggregate
would result in any Material Adverse Effect.
(20) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the performance
by the Operating Partnership of its obligations under this Underwriting
Agreement, the applicable Terms Agreement, the Indenture or in connection
with the transactions contemplated under this Underwriting Agreement, such
Terms Agreement or the Indenture, except such as have been already
obtained or as may be required under state securities laws or under the
by-laws and rules of the National Association of Securities Dealers, Inc.
(the "NASD").
(21) Possession of Licenses and Permits. Each of the Operating
Partnership and the Subsidiaries possesses such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them except for such Governmental Licenses, the failure to
obtain would not, singly or in the aggregate, result in a Material Adverse
Effect. The Operating Partnership and the Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not result in a Material Adverse Effect.
Neither the Operating Partnership nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(22) Title to Property. The Operating Partnership, the Subsidiaries
or any joint venture partnership in which the Operating Partnership owns
an interest, as the case may be, have good and marketable fee simple title
or leasehold title, as the case may be, to all real property owned or
leased, or represented to be owned or leased, as applicable, by the
Operating Partnership or the Subsidiaries, and good title to all other
properties owned by them, and any improvements thereon and all other
assets that are required for the effective operation of such properties in
the manner in which they currently are operated, free and clear of all
liens, encumbrances, claims, security interests and defects, except such
as are Permitted Encumbrances (as defined below); (B) all liens, charges,
encumbrances, claims or restrictions on or affecting any of the Properties
and the assets of any of the Operating Partnership, the Subsidiaries or
any joint venture partnership in which the Operating Partnership owns an
interest that are required to be disclosed in the Prospectus are disclosed
therein; (C) each of the Properties comply with all applicable codes, laws
and regulations and (including, without limitation, building and zoning
codes, laws and regulations and laws relating to access to the
Properties), except if and to the extent disclosed in the Prospectus and
except for such failures to comply that would not in the aggregate have a
Material Adverse Effect; (D) there are in effect for the assets of each of
the Operating Partnership, the Subsidiaries or any joint venture
partnership in which the Operating Partnership owns an interest, insurance
policies covering the risks and in amounts that are commercially
reasonable for the types of assets owned by them and that are consistent
with the types and amounts of insurance typically maintained by prudent
owners of properties similar to such assets in the markets in which such
assets are located, and none of the Operating Partnership, the
Subsidiaries or any joint venture partnership in which the Operating
Partnership owns an interest has received from any insurance company
notice of any material defects or deficiencies affecting the insurability
of any such assets or any notices of cancellation or intent to cancel any
such policies; and (E) the Operating Partnership has no knowledge of any
pending or threatened, litigation, moratorium, condemnation proceedings,
zoning change, or other similar proceeding or action that could in any
manner affect the size of, use of, improvements on, construction on,
access to or availability of utilities or other necessary services to the
Properties, except such proceedings or actions that would not have a
Material Adverse Effect. All of the leases and subleases material to the
business of the Operating Partnership and the Subsidiaries considered as
one enterprise, and under which the Operating Partnership or any
Subsidiary holds Properties described in the Prospectus, are in full force
and effect, and neither the Operating Partnership nor any Subsidiary has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Operating Partnership nor
any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Operating Partnership or any
Subsidiary of the continued possession of the leased or subleased premises
under any such lease or sublease. "Permitted Encumbrance" shall mean (a)
liens on certain Properties securing any of the Operating Partnership, any
Subsidiary or joint venture partnership obligations, (b) other liens which
are expressly described in, or which are incorporated by reference into,
the Prospectus and (c) customary easements and encumbrances and other
exceptions to title which do not impair the operation, development or use
of the Properties for the purposes intended therefor as contemplated in
the Prospectus.
(23) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, to the knowledge of the Operating Partnership and any Subsidiary,
as the case may be, after due inquiry, (A) neither the Operating
Partnership nor any Subsidiary is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance or code,
including any judicial or administrative order, consent, decree of
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Operating
Partnership and any Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Operating Partnership or any Subsidiaries, and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Operating Partnership or any Subsidiary relating to any Hazardous
Materials or the violation of any Environmental Laws.
(24) Tax Returns. Each of the Operating Partnership and any
Subsidiary has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
an extension has been granted or the failure to so file would not have a
Material Adverse Effect) and has paid all taxes required to be paid and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except, in all cases, for
any such tax, assessment, fine or penalty that is being contested in good
faith.
(25) Environmental Consultants. None of the environmental consultants
which prepared environmental and asbestos inspection reports with respect
to certain of the Properties was employed for such purpose on a contingent
basis or has any substantial interest in the Company, the Operating
Partnership or any Subsidiary and none of them nor any of their directors,
officers or employees is connected with the Company, the Operating
Partnership or any Subsidiary as a promoter, selling agent, voting
trustee, director, officer or employee.
(26) Title Insurance. The Operating Partnership and any Subsidiary,
as the case may be, have obtained, title insurance on the fee interests
and leasehold interests in each of the Properties in an amount at least
equal to the greater of (A) the mortgage indebtedness on each such
Property or (B) the purchase price paid for each such Property (in the
case of any Property having been acquired by the Operating Partnership via
an exchange of Units for partnership interests in the entity holding such
property, the "purchase price" of such Property being deemed to be the sum
of (i) the per-share price of the Common Stock of the Company on the date
such Property was exchanged for Units multiplied by the number of Units
exchanged for such Property or interests in the entity holding such
Property and (ii) the amount of any assumed indebtedness secured by such
Property), except that Omni Partnership has obtained title insurance
insuring Omni Partnership's interest in its real property assets in an
amount not less than $48 million.
(27) Absence of Regulation M Violation. None of the Company, the
Operating Partnership, the Subsidiaries, nor any of their respective
directors, officers, members or controlling persons, has taken or will
take, directly or indirectly, any action resulting in a violation of
Regulation M under the 1934 Act, or designed to cause or result in, or
that has constituted or that reasonably might be expected to constitute,
the stabilization or manipulation of the price of any security of the
Operating Partnership to facilitate the sale or resale of the Securities.
(28) Year 2000 Problem The Operating Partnership has reviewed its
operations and that of the Subsidiaries and any third parties with which
the Operating Partnership or any Subsidiaries has a material relationship
to evaluate the extent to which the business or operations of the
Operating Partnership or any Subsidiaries will be affected by the Year
2000 Problem. As a result of such review, the Operating Partnership has no
reason to believe, and does not believe, that the Year 2000 Problem will
have a Material Adverse Effect or result in any material loss or
interference with the Operating Partnership's business or operations. The
"Year 2000 Problem" as used herein means any significant risk that
computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in
the case of dates or time periods occurring prior to January 1, 2000.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any authorized
representative of the Operating Partnership and delivered to any Underwriter
or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by such
entity or person, as the case may be, to each Underwriter as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) UNDERWRITTEN SECURITIES. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) OPTION UNDERWRITTEN SECURITIES. In addition, subject to the terms and
conditions set forth therein, the Operating Partnership, as applicable, may
grant, if so provided in the applicable Terms Agreement, an option to the
Underwriters, severally and not jointly, to purchase up to the aggregate
principal amount of the Option Underwritten Securities set forth therein at a
price per Option Underwritten Security equal to the price per Initial
Underwritten Security, less an amount equal to any interest paid or payable on
the Initial Underwritten Securities but not payable on the Option Underwritten
Securities. Such option, if granted, will expire 30 days after the date of
such Terms Agreement, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by Goldman Sachs to the Operating Partnership setting
forth the aggregate principal amount of Option Underwritten Securities as to
which the several Underwriters are then exercising the option and the time,
date and place of payment and delivery for such Option Underwritten
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by Goldman Sachs, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, unless otherwise agreed upon by Goldman Sachs and
the Operating Partnership. If the option is exercised as to all or any portion
of the Option Underwritten Securities, each of the Underwriters, severally and
not jointly, will purchase that proportion of the total aggregate principal
amount of Option Underwritten Securities then being purchased which the
aggregate principal amount of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities, subject to such adjustments as Goldman Sachs in its
discretion shall make to eliminate any sales or purchases of a fractional
aggregate principal amount of Option Underwritten Securities.
(c) PAYMENT. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Brown & Wood
LLP, or at such other place as shall be agreed upon by Goldman Sachs and the
Operating Partnership, at 10:00 a.m. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by
Goldman Sachs and the Operating Partnership (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that
the Underwriters have exercised their option, if any, to purchase any or all
of the Option Underwritten Securities, payment of the purchase price for, and
delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of Brown & Wood LLP, or at such other place as shall
be agreed upon by Goldman Sachs and the Operating Partnership on the relevant
Date of Delivery as specified in the notice from Goldman Sachs to the
Operating Partnership.
Payment shall be made to the Operating Partnership by wire transfer
of Federal funds or similar same day funds payable to the order of the
Operating Partnership against delivery to Goldman Sachs for the respective
accounts of the Underwriters of the Underwritten Securities to be purchased by
them. It is understood that each Underwriter has authorized Goldman Sachs, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Securities which it has severally agreed
to purchase. Goldman Sachs, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
check has not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. The Underwritten Securities shall be in
such denominations and registered in such names as Goldman Sachs may request
in writing at least one full business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by Goldman Sachs in The
City of New York not later than 10:00 a.m. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants of the Operating Partnership.
The Operating Partnership covenants with Goldman Sachs and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Operating Partnership, subject to Section 3(b), will comply with the
requirements of the 1933 Act Regulations, including Rule 430A and Rule 434,
and will notify Goldman Sachs immediately, and confirm the notice in writing,
of (i) the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus, (ii)
the receipt of any comments from the Commission, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Operating Partnership will promptly effect the filings necessary pursuant to
Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Operating Partnership will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. At any time when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of
the Underwritten Securities, the Operating Partnership will give Goldman Sachs
notice of their intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish Goldman Sachs with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which Goldman
Sachs or counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Operating Partnership has
furnished or will deliver to Goldman Sachs and counsel for the Underwriters,
without charge, a signed copy of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to Goldman Sachs and counsel
for the Underwriters, without charge, conformed copies of the Registration
Statement as originally filed and of each amendment thereto for each of the
Underwriters. If applicable, the copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Operating Partnership will deliver to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter may reasonably request, and the Operating
Partnership hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Operating Partnership will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act and prior to 4:00 p.m. New York
City time on the New York business day next succeeding the date of the
applicable Terms Agreement, such number of copies of the Prospectus as such
Underwriter may reasonably request. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Operating Partnership
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the applicable
preliminary prospectus or Prospectus is required by the 1933 Act or the 1934
Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriter or for the Operating Partnership,
to amend the Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the applicable
preliminary prospectus or Prospectus in order that the applicable preliminary
prospectus or Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the applicable preliminary prospectus or
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Operating Partnership will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement, applicable preliminary prospectus or the Prospectus
comply with such requirements, and the Operating Partnership will furnish to
the Underwriters and counsel for the Underwriters, without charge, such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) BLUE SKY QUALIFICATIONS. The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as Goldman Sachs may
designate and to maintain such qualifications in effect for a period of not
less than one year from the date of the applicable Terms Agreement; provided,
however, that the Operating Partnership shall not be obligated to file any
general consent to service of process or to qualify or register as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or registered, or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Underwritten Securities have been so qualified
or registered, the Operating Partnership will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
of such Terms Agreement.
(g) EARNINGS STATEMENT. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings statement
(in form complying with Rule 158 of the 1933 Act Regulations) for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) REPORTING REQUIREMENTS. The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(i) RESTRICTION ON SALE OF SECURITIES. Between the date of the applicable
Terms Agreement and the Closing Time and/or such other date specified in such
Terms Agreement, the Operating Partnership and any other entity or person
named in the applicable Terms Agreement will not, without the prior written
consent of Goldman Sachs, directly or indirectly, issue, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement subject to any conditions listed therein.
(j) REIT QUALIFICATION. The Company will use its best efforts to continue
to meet the requirement to qualify as a "real estate investment trust" under
the Code for each of its taxable years.
(k) USE OF PROCEEDS. The Operating Partnership will use the net proceeds
received by it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(l) EXCHANGE ACT FILINGS. During the period from each Closing Time until
March 31, 2002, the Operating Partnership will deliver to Goldman Sachs, (i)
promptly upon their becoming available, copies of all current, regular and
periodic reports of the Operating Partnership mailed to its unitholders or
filed with any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii) such other
information concerning the Operating Partnership as Goldman Sachs may
reasonably request.
(m) NO MANIPULATION OF MARKET FOR SECURITIES. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, the Operating Partnership will not
(a) take, directly or indirectly, any action designed to cause or to result
in, or that might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Operating Partnership to
facilitate the sale or resale of the Underwritten Securities, and (b) until
the Closing Date, or the Date of Delivery, if any, (i) sell, bid for or
purchase the Underwritten Securities or pay any person any compensation for
soliciting purchases of the Underwritten Securities or (ii) pay or agree to
pay to any person any compensation for soliciting another to purchase any
other securities of the Operating Partnership.
(p) RULE 462(B) REGISTRATION STATEMENT. If the Operating Partnership
elects to rely upon Rule 462(b), the Operating Partnership shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
1933 Act.
SECTION 4. Payment of Expenses.
(a) EXPENSES. The Operating Partnership will pay all expenses incident to
the performance of its obligations under this Underwriting Agreement and each
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and delivery
to the Underwriters of this Underwriting Agreement, any Terms Agreement, any
Agreement among Underwriters, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Underwritten Securities (iii) the preparation, issuance and delivery of the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements
of the Operating Partnership's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of any trustee or its agents under any Indenture and their
respective counsel, (v) the qualification of the Underwritten Securities under
state securities and real estate syndication laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation, printing and delivery of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheet, the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, (viii) the fees and expenses
incurred with respect to the listing of the Underwritten Securities, (ix) the
fees and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(a)(15) of the Conduct Rules
of the NASD), if applicable, and (x) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by Goldman Sachs in accordance with the provisions of Section 5 or
Section 9(b) hereof, the Operating Partnership shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Operating
Partnership contained in Section 1 hereof or in certificates of any officer or
authorized representative of the Operating Partnership delivered pursuant to
the provisions hereof, to the performance by the Operating Partnership of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
has become effective under the 1933 Act (and in the case of a Rule 462(b)
Registration Statement such Registration Statement shall have become effective
by 10:00 P.M. Washington, D.C. time on the date of this Agreement) and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission or the state securities authority of any jurisdiction, and
any request on the part of the Commission or the state securities authority of
any jurisdiction for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Underwritten
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3),
(4) or (5), as applicable (or any required post-effective amendment providing
such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Operating Partnership has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been filed with the Commission
in accordance with Rule 424(b)(7).
(b) OPINION OF COUNSEL FOR THE OPERATING PARTNERSHIP. At Closing Time,
Goldman Sachs shall have received the favorable opinion, dated as of Closing
Time, of Brown & Wood LLP, counsel for the Operating Partnership, in form and
substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters, such
opinion shall address such of the items set forth in Exhibit C hereto as may
be relevant to the particular offering contemplated or to such further effect
as counsel to the Underwriters may reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, Goldman Sachs
shall have received the favorable opinion, dated as of Closing Time, of Rogers
& Wells LLP, counsel for the Underwriters, or such other counsel as may be
designated by Goldman Sachs together with signed or reproduced copies of such
letter for each of the other Underwriters, with respect to the matters set
forth in (1), (2) (with respect to the first clause of the first sentence
only), (6), (7), (8), (9) (with respect to the first three sentences only),
(12), (18) (with respect to the first and third sentences only) and (21) of
Exhibit C hereto and the last two paragraphs of Exhibit C hereto. In giving
such opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware,
upon the opinions of counsel satisfactory to Goldman Sachs. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of authorized
representatives of the Operating Partnership and certificates of public
officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Operating Partnership or any Subsidiary
considered as one enterprise, whether or not arising in the ordinary course of
business, and Goldman Sachs shall have received a certificate of the President
or a Vice President of the Company, as general partner of the Operating
Partnership, and of the chief financial officer or chief accounting officer of
the Company, as general partner of the Operating Partnership, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 are true and
correct, in all material respect, with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Operating Partnership
has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Closing Time and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened
by the Commission or by the state securities authority of any jurisdiction.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of the
applicable Terms Agreement, Goldman Sachs shall have received from Ernst &
Young LLP a letter, dated such date, in form and substance satisfactory to
Goldman Sachs and counsel to the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on
Auditing Standards 72 to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement and
the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, Goldman Sachs shall have
received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred
to shall be a date not more than three business days prior to the Closing
Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Operating Partnership shall have
delivered to Goldman Sachs a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to Goldman Sachs,
confirming that the Underwritten Securities have such ratings. Since the time
of execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of
the Operating Partnership's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating
of the Underwritten Securities or any of the Operating Partnership's other
securities.
(h) APPROVAL OF LISTING. At Closing Time, the Underwritten Securities
shall be listed or shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) [Intentionally Omitted]
(j) OVER-ALLOTMENT OPTION. In the event that the Underwriters are granted
an over-allotment option by the Operating Partnership in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Operating Partnership contained herein and the statements in
any certificates furnished by the Operating Partnership hereunder shall be
true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, Goldman Sachs shall have received:
(1) A certificate dated such Date of Delivery, of the President or a
Vice President of the Company, as general partner of the Operating
Partnership, and the chief financial officer or chief accounting officer
of the Company, as general partner of the Operating Partnership,
confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Brown & Wood LLP, counsel for the
Operating Partnership, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(3) The favorable opinion of Rogers & Wells LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to Goldman Sachs and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
Goldman Sachs pursuant to Section 5(f) hereof, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained.
(l) TERMINATION OF TERMS AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Underwritten Securities
on such Date of Delivery) may be terminated by Goldman Sachs by notice to the
Company at any time at or prior to the Closing Time (or such Date of Delivery,
as applicable), and such termination shall be without liability of any party
to any other party except as provided in Section 4, and except that Sections
1, 6 and 7 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) INDEMNIFICATION OF UNDERWRITERS. The Operating Partnership agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act, and
any director, officer, employee or affiliate thereof, as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement or a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) of the
1933 Act Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or of any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (1)
above, if such settlement is effected with the written consent of the
indemnifying party, which consent shall not be unreasonably withheld; and
(3) against any and all expense whatsoever (including without
limitation, the fees and disbursements of counsel chosen by Goldman
Sachs) reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings by any
governmental agency or body, commenced or threatened, or any claim
whatsoever for which indemnification is provided under subsection (1)
above, to the extent that any such expense is not paid under subsection
(1) or (2) above; provided, however, that the indemnity agreement
provided for in this Section 6(a) shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Operating Partnership by any Underwriter through Goldman Sachs expressly
for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided, however, that neither the Company nor the Operating
Partnership shall be required to indemnify any Underwriter with respect
to any preliminary prospectus to the extent that any loss, claim, damage
or expense of such Underwriter results solely from an untrue statement of
a material fact contained in, or the omission of a material fact from,
such preliminary prospectus which untrue statement or omission was
corrected in the Prospectus and identified to such Underwriter in writing
and which corrected Prospectus was furnished by the Company to such
Underwriter pursuant to Section 3(d) hereof but it shall be established
that such Prospectus was not sent or given by such Underwriter to the
purchaser of the Underwritten Securities at or prior to the written
confirmation of such sale and such correction would have cured the defect
giving rise to such loss, claim, damage or expense.
(b) INDEMNIFICATION OF OPERATING PARTNERSHIP. Each Underwriter severally
and not jointly agrees to indemnify and hold harmless the Operating
Partnership, and each person, if any, who controls the Operating Partnership
within the meaning of Section 15 of the 1933 Act, and any employee or
affiliate thereof, against any and all loss, liability, claim, damage, and
expense described in the indemnity contained in subsection (a) of this Section
6, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Operating Partnership by such Underwriter
through Goldman Sachs expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION; SETTLEMENT WITHOUT CONSENT IF
FAILURE TO REIMBURSE. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
so to notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the other
indemnifying parties defendant in such action and reasonably approved by the
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to an indemnifying party), unless such other indemnifying
parties or an indemnified party reasonably object to such assumption on the
ground that the named parties to any such action (including any impleaded
parties) include both such indemnified party and an indemnifying party, and
such indemnified party reasonably believes that there may be legal defenses
available to it which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgement (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, the Operating Partnership, on the one hand, and the Underwriters, on
the other, shall contribute to the aggregate losses, liabilities claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Operating Partnership and the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Operating Partnership are responsible for the
balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under Section 6(c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits allocation referred to in the first sentence of this Section 7 but
also the relative fault of the Operating Partnership, on the one hand, and the
Underwriters on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Operating Partnership, on the one hand, or such Underwriters,
on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this Section shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the applicable Underwritten
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the foregoing, no
person guilty of fraudulent misrepresentation (within the meaning of section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each employee or affiliate of the Operating Partnership
and each person, if any, who controls the Operating Partnership within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Operating Partnership.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
authorized representatives of the Operating Partnership submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Operating Partnership, and shall
survive delivery of and payment for the Underwritten Securities.
SECTION 9. Termination.
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by
the Operating Partnership or by Goldman Sachs upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) TERMS AGREEMENT. Goldman Sachs may terminate the applicable Terms
Agreement, by notice to the Operating Partnership, at any time at or prior to
the Closing Time or any relevant Date of Delivery, if (i) there has been,
since the time of execution of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Operating Partnership and any
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, in each case the effect of which is such as to
make it, in the judgment of Goldman Sachs, impracticable or inadvisable to
market the Underwritten Securities, or (ii) there has occurred any material
adverse change in the financial markets in the United States or
internationally or any outbreak of hostilities or escalation thereof or other
calamity or crisis, or any change or development involving a prospective
change in national or international political, financial, or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of Goldman Sachs, impracticable or inadvisable to market the
Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Operating
Partnership has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market has been suspended
or limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by either of said exchanges or
by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by
either Federal or New York authorities.
(c) LIABILITIES. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 13 hereof
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then Goldman Sachs shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, Goldman Sachs
shall not have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms Agreement,
the non-defaulting Underwriters named in such Terms Agreement shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations under
such Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Underwritten Securities
to be purchased pursuant to such Terms Agreement, such Terms Agreement
(or, with respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Underwritten Securities
on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter except as
provided by Section 9(c).
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Goldman Sachs or the Operating
Partnership shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to Goldman
Sachs at 32 Old Slip, 9th Floor, New York, New York 10005, attention:
Registration Department; and notices to the Operating Partnership shall be
directed to them at 225 Broadhollow Road, Melville, New York 11747, attention
of Scott H. Rechler, Chief Operating Officer.
SECTION 12. Parties.
This Underwriting Agreement and the applicable Terms Agreement shall each
inure to the benefit of and be binding upon the parties hereto and, upon
execution of such Terms Agreement, any other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement or
such Terms Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Operating Partnership
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Underwriting Agreement, along with all counterparts,
will become a binding agreement between Goldman Sachs and the Operating
Partnership in accordance with its terms.
Very truly yours,
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
its General Partner
By: /s/ Michael Maturo
---------------------------
Name:
Title
CONFIRMED AND ACCEPTED,
as of the date first
above written:
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-------------------------
(Goldman, Sachs & Co.)
Exhibit A
RECKSON OPERATING PARTNERSHIP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
__________ __, 199_
To: Reckson Operating Partnership, L.P.
225 Broadhollow Road
Melville, New York 11747
Ladies and Gentlemen:
We understand that Reckson Operating Partnership, L.P. (the
"Operating Partnership") proposes to issue and sell $ in aggregate principal
amount of its debt securities (the "Notes") ([securities also being
hereinafter referred to as] the "Initial Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective aggregate principal amount of Initial Underwritten
Securities set forth below opposite their names at the purchase price set
forth below, and a proportionate share of Option Underwritten Securities (as
defined in the Underwriting Agreement referred to below) set forth below, to
the extent any are purchased.
Aggregate Principal Amount of
Initial Underwritten Securities
Total [$]
The Underwritten Securities shall have the following terms:
Title:
Aggregate Principal Amount: $
Aggregate Principal Amount of Option
Underwritten Securities: $
Initial public offering price: $
Purchase price: $
Interest rate:
Interest Payment Date:
Maturity Date:
Redemption provisions:
Sinking Fund requirements:
Conversion provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "RECKSON OPERATING PARTNERSHIP, L.P. -- Debt Securities --
UNDERWRITING AGREEMENT" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
Please accept this offer no later than o'clock p.m. (New York City
time) on _________ by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
GOLDMAN, SACHS & CO.
By: ________________________________
(Goldman, Sachs & Co.)
Acting on behalf of itself and the other named Underwriters.
Accepted:
RECKSON OPERATING PARTNERSHIP, L.P.
By: RECKSON ASSOCIATES REALTY CORP., its sole general partner
By: ___________________________
Name:
Title:
Exhibit B
SIGNIFICANT SUBSIDIARIES
(1) Reckson FS Limited Partnership, a Delaware limited partnership
Exhibit C
FORM OF OPINION OF THE COMPANY'S AND THE
OPERATING PARTNERSHIP'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation and is in good standing with the State Department of Assessment
and Taxation of Maryland. The Company has the corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement and is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to
so qualify or register or be in good standing would not result in a Material
Adverse Effect.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership and is in good standing with the Secretary
of State of Delaware. The Operating Partnership has the power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement and is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to
so qualify or register or be in good standing would not result in a Material
Adverse Effect.
(3) All the outstanding Units have been duly authorized for issuance by
the Operating Partnership to the holders of Units and, assuming that the
holders of Units, as limited partners of the Operating Partnership do not
participate in the control of the business of the Operating Partnership, the
Units will represent valid and, subject to the qualifications set forth
herein, fully paid and non-assessable limited partner interests in the
Operating Partnership, as to which the holders of Units, in their capacity as
limited partners of the Operating Partnership, will have no liability in
excess of their obligations to make contributions to the Operating
Partnership, their obligations to make other payments provided for in the
Operating Partnership Agreement and their share of the Operating Partnership's
assets and undistributed profits (subject to the obligation of a limited
partner of the Operating Partnership to repay any funds wrongfully distributed
to it). No Units are reserved for any purpose and except for the "put rights"
accorded to Odyssey Partners, L.P., under Section 12.4 of the Second Amended
and Restated Agreement of Limited Partnership of the Omni Partnership, the
Merger Agreement, dated December 8, 1998 by and among the Company, the
Operating Partnership, Metropolitan Partners LLC and Tower Realty Trust, Inc.
(the "Tower Merger Agreement"), the rights of the holders of the Series A, B,
C and D preferred units of limited partner interest in the Operating
Partnership, the rights of the holder of the preferred interest in
Metropolitan Partners LLC pursuant to the terms of the limited liability
operating agreement of Metropolitan Partners LLC dated December 8, 1998, and
as otherwise described in the Registration Statement, to our knowledge, there
are no outstanding securities convertible into or exchangeable for any Units
and no outstanding options, rights (preemptive or otherwise) or warrants to
purchase or subscribe for Units or any other securities of the Operating
Partnership arising by operation of law or under the organizational documents
of the Operating Partnership or any contracts to which the Operating
Partnership is a party of which we are aware.
(4) Each Significant Subsidiary has been duly incorporated or organized
and is validly existing as a corporation, limited partnership or other legal
entity, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be, and has
the requisite power and authority to own, lease and operate its properties and
to conduct the business in which it is engaged or proposes to engage as
described in the Prospectus and is duly qualified or registered as a foreign
corporation, limited partnership or other legal entity, as the case may be, to
transact business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure to
so qualify or register or to be in good standing would not result in a
Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital stock
or other equity interests, as the case may be, of each Significant Subsidiary
has been duly authorized and is validly issued, fully paid and non-assessable
and has been offered and sold in compliance with all applicable laws of the
United States and the organizational laws of the jurisdictions of organization
of such entity, and to the best of our knowledge and information, is owned,
directly or indirectly, by the Operating Partnership, in each case, free and
clear of any material Liens, except for such liens that would not have a
Material Adverse Effect.
(5) The Underwriting Agreement and the applicable Terms Agreement has
been duly authorized, executed and delivered by the Operating Partnership.
(6) The Indenture has been duly authorized, executed and delivered by the
Operating Partnership and constitutes a valid and legally binding agreement,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and the Indenture has been duly qualified under the Trust Indenture Act.
(7) The Underwritten Securities have been duly authorized by the
Operating Partnership and, when issued and delivered pursuant to the
Indenture, the Underwriting Agreement and the applicable Terms Agreement
against payment of the requisite consideration therefor, such Underwritten
Securities will have been duly executed and delivered by the Operating
Partnership and will constitute valid and legally binding obligations of the
Operating Partnership entitled to the benefits provided by the Indenture,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
generally and to general equity principles.
(8) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the Indenture conform, in all material respects, to the
statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
(9) The information in the Prospectus under "Description of Debt
Securities," "Description of Notes" and "Federal Income Tax Considerations,"
and such other information in the Prospectus Supplement or in any Annual
Report on Form 10-K of the Company as may be agreed upon from time to time by
the Company and Goldman Sachs, to the extent that it constitutes matters of
law, descriptions of statutes, rules or regulations, summaries of legal
matters, the Operating Partnership's documents or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects
and fairly summarizes the information required to be disclosed therein and our
opinion set forth in Exhibit 8.1 of the Prospectus as to tax matters is
confirmed.
(10) To the best of our knowledge, neither the Company, the Operating
Partnership nor any of the Significant Subsidiaries is in violation of its
charter, by-laws, partnership agreement, or other organizational document, as
the case may be, and no default by the Operating Partnership or any
Significant Subsidiary exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is filed or incorporated by reference as an exhibit to the
Registration Statement.
(11) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the Indenture and consummation
of the transactions contemplated in the Underwriting Agreement and such Terms
Agreement and in the Registration Statement and the Prospectus (including the
issuance and sale of the Underwritten Securities) and compliance by the
Operating Partnership or any Significant Subsidiary with its obligations
thereunder do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Operating
Partnership or any Significant Subsidiary pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, known to us, to which the Operating
Partnership or any Significant Subsidiary is a party or by which it or any of
them may be bound, or to which any of the assets, properties or operations of
the Operating Partnership or any Significant Subsidiary is subject, except for
such conflicts, breaches, defaults, events or liens, charges or encumbrances
that would not result in a Material Adverse Effect, nor will such action
result in any violation of the provisions of the charter, by-laws, or
agreement of limited partnership, as applicable, of the Operating Partnership
or any Significant Subsidiary or any applicable laws, statute, rule,
regulations, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Operating Partnership or any Significant Subsidiary or any of their
assets, properties or operations.
(12) To our knowledge, except as disclosed in the Prospectus, there are
no pending or threatened actions, suits or proceedings against or affecting
any of the Operating Partnership or any Subsidiary or any of their respective
properties or other assets that, if determined adversely to any such entity
would individually or in the aggregate have a Material Adverse Effect or would
materially adversely affect the ability of the Operating Partnership to
perform its obligations under the Underwriting Agreement and the applicable
Terms Agreement.
(13) At all times since January 1, 1995, the Company has been organized
and conducts its business in a manner that will enable it to qualify as (and
has timely taken all necessary steps to maintain qualification) as a real
estate investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"). The proposed method of operation, as described in the
Prospectus, of the Company will enable the Company to continue to meet the
requirements for taxation as a real estate investment trust under the Code and
to the best of our knowledge, no actions have been taken (or not been taken
which are required to be taken) which could cause such qualification to be
lost for any of its subsequent taxable years.
(14) The statements in the Prospectus regarding [agreements to be
specified in each transaction] are accurate in all material respects. To the
best of our knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(15) The Registration Statement was declared effective under the 1933 Act
as of March 11, 1999. Any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b). To the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
(16) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements, supporting schedules or other
financial data included or incorporated by reference therein or the Trustee's
Statement of Eligibility on Form T-1, as to which we express no opinion),
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the Trust Indenture Act and 1939 Act
Regulations.
(17) The documents incorporated by reference in the Prospectus (other
than the financial statements, supporting schedules or other financial data
included or incorporated by reference therein, as to which we express no
opinion), when they were filed with the Commission, (or, if later, upon the
filing of an amendment thereto), complied as to form in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder.
(18) No filing with, or authorization, approval, consent, license, order
registration, qualification or decree of, any court or governmental authority
or agency is necessary or required for the performance by the Operating
Partnership of its obligations under the Underwriting Agreement or the
applicable Terms Agreement or in connection with the transactions contemplated
under the Underwriting Agreement or such Terms Agreement other than under the
1933 Act, the 1933 Act Regulations, the Trust Indenture Act or the 1939 Act
Regulations, which have been obtained, or as may be required under the by-laws
and rules of the NASD, state securities or blue sky laws.
(19) The Operating Partnership is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
Nothing has come to our attention that would lead us to believe that the
Registration Statement (other than financial statements, supporting schedules
or other financial data included or incorporated by reference therein or the
Trustee's Statement of Eligibility of Form T-1, as to which we have not been
requested to comment), at the time the Registration Statement or any
post-effective amendment thereto (including the filing of the Operating
Partnership's Annual Report on Form 10-K with the Commission) became effective
or at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (other than
financial statements, supporting schedules or other financial data included or
incorporated by reference therein, as to which we have not been requested to
comment), at the time the Prospectus was issued, at the time any such amended
or supplemented prospectus was issued or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of authorized representatives of the Operating Partnership and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation,
the Legal Opinion Accord of the ABA Section of Business Law (1991).
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the published rules and regulations thereunder;
(ii) _____ on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim [consolidated] financial statements of
the Company for the [three month periods ended __________, 19__, and
__________, 19__, the three and six month periods ended __________, 19__,
and __________, 19__, and the three and nine month periods ended
__________, 19__, and __________, 19__, included or incorporated by
reference in the Registration Statement and the Prospectus (collectively,
the "10-Q Financials")]1 [, a reading of the unaudited interim
[consolidated] financial statements of the Company for the _____-month
periods ended __________, 19__, and __________, 19__, included in the
Registration Statement and the Prospectus (the "_____-month
financials")]2 [, a reading of the latest available unaudited interim
[consolidated] financial statements of the Company],3 a reading of the
minutes of all meetings of the stockholders and directors of the Company
[and its subsidiaries] and the Committees of the Company's Board of
Directors [and any subsidiary committees] since [day after end of last
audited period], inquiries of certain officials of the Company [and its
subsidiaries] responsible for financial and accounting matters, a review
of interim financial information in accordance with standards established
by the American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"),4
with respect to the [description of relevant periods]5 and such other
inquiries and procedures as may be specified in such letter, nothing came
to our attention that caused us to believe that:
[(A) _____ the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them
to be in conformity with generally accepted accounting principles;]6
[( ) _____ the _____-month financials included in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
any material modifications should be made to the _____-month
financials included in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted accounting
principles;]7
( ) ______ at [____________, 19__ and at]8 a specified date not
more than five days9 prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Company
[and its subsidiaries] or any decrease in the _________ of the
Company [and its subsidiaries] or any increase in the ___________ of
the Company [and its subsidiaries,]10 in each case as compared with
amounts shown in the latest balance sheet included in the
Registration Statement and the Prospectus, except in each case for
changes, decreases or increases that the Registration Statement and
the Prospectus disclose have occurred or may occur; or
( ) ______ [for the period from ___________, 19__ to
___________, 19__ and]11 for the period from _________, 19__ to a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there was any decrease in __________,
___________ or ___________,12 in each case as compared with the
comparable period in the preceding year, except in each case for any
decreases that the Registration Statement and the Prospectus
discloses have occurred or may occur;
(iii) ____ based upon the procedures set forth in clause (ii) above
and a reading of the [Selected Financial Data] included in the
Registration Statement and the Prospectus [and a reading of the financial
statements from which such data were derived,]13 nothing came to our
attention that caused us to believe that the [Selected Financial Data]
included in the Registration Statement and the Prospectus do not comply
as to form in all material respects with the disclosure requirements of
Item 301 of Regulation S-K of the 1933 Act [, that the amounts included
in the [Selected Financial Data] are not in agreement with the
corresponding amounts in the audited [consolidated] financial statements
for the respective periods or that the financial statements not included
in the Registration Statement and the Prospectus from which certain of
such data were derived are not in conformity with generally accepted
accounting principles];14
(iv) _____ we have compared the information in the Registration
Statement and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of
limited procedures specified herein. Nothing came to our attention that
caused us to believe that this information does not comply as to form in
all material respects with the disclosure requirements of Items 302, 402
and 503(d), respectively, of Regulation S-K;
[(v) _____ based upon the procedures set forth in clause (ii) above,
a reading of the unaudited financial statements of the Company for [the
most recent period] that have not been included in the Registration
Statement and the Prospectus and a review of such financial statements in
accordance with SAS 71, nothing came to our attention that caused us to
believe that the unaudited amounts for __________________ for the [most
recent period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited [consolidated]
financial statements;]15
[(vi)] we are unable to and do not express any opinion on the [Pro
Forma Combining Statement of Operations] (the "Pro Forma Statement")
included in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) _____ performed [an audit] [a review in accordance with SAS
71] of the financial statements to which the pro forma adjustments
were applied;
(C) _____ made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters about
the basis for their determination of the pro forma adjustments and
whether the Pro Forma Statement complies as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(D) _____ proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the Pro Forma
Statement; and
on the basis of such procedures and such other inquiries and procedures
as specified herein, nothing came to our attention that caused us to
believe that the Pro Forma Statement included in the Registration
Statement does not comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;16 and
[(vii)] in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit,
with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement and the
Prospectus, which are specified herein, and have compared certain of such
items with, and have found such items to be in agreement with, the
accounting and financial records of the Company;17 and
[(viii) in addition, we [comfort on a financial forecast that is
included in the Registration Statement and the Prospectus.18]
1 Include the appropriate dates of the 10-Q Financials.
2 Include if non-10-Q interim financial statements are included in the
Registration Statement and the Prospectus.
3 Include if the most recent unaudited financial statements are not
included in the Registration Statement and the Prospectus.
4 Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 71 is required for an accountant to give negative assurance on
interim financial information. A review in accordance with SAS No. 71 will
only be performed at the request of the Company and the accountant's report,
if any, related to that review will be addressed only to the Company. Many
companies have a SAS No. 71 review performed in connection with the
preparation of their 10-Q financial statements. See Codification of Statements
on Auditing Standards, AU ss. 722 for a description of the procedures that
constitute such a review. The comfort letter itself should recite that the
review was performed and a copy of the report, if any, should be attached to
the comfort letter. Any report issued pursuant to SAS No. 71 that is mentioned
in the Registration Statement should also be included in the Registration
Statement as an exhibit. If a review in accordance with SAS No. 71 has not and
will not be performed by the accountants, they should be prepared to perform
certain agreed-upon procedures on the interim financial information and to
report their findings thereon in the comfort letter. See Codification of
Statements on Auditing Standards, AU ss. 622 for a discussion of reports
related to the accountant's performance of agreed-upon procedures. Any
question as to whether a review in accordance with SAS No. 71 will be
performed by the accountants should be resolved early.
5 The relevant periods include all interim unaudited condensed
consolidation financial statements included or incorporated by reference in
the Registration Statement and the Prospectus.
6 Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
7 Include if unaudited financial statements, not just selected unaudited
data, are included in the Registration Statement and the Prospectus.
8 Include, and insert the date of most recent balance sheet of the Company,
if those statements are more recent than the unaudited financial statements
included in the Registration Statement and the Prospectus.
9 According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the applicable Terms Agreement. However, in
unusual circumstances, five business days may be used.
10 The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general and
operations in particular. While the ultimate decision of which items should be
included rests with the banker, comfort is routinely requested for certain
balance sheet items, including long-term debt, stockholders' equity, capital
stock and net current assets.
11 Include, and insert dates to describe the period from the date of the
most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial statements of
the Company, if those dates are different. Regardless of whether this language
is inserted or not, the period including five days prior to the date of the
applicable Terms Agreement should run from the date of the last financial
statement included in the Registration Statement and the Prospectus, not from
the later one that is not included in the Registration Statement and the
Prospectus.
12 The blanks should be filled in with significant income statements items,
selected by the banker and tailored to the issuer's industry in general and
operations in particular. While the ultimate decision of which items should be
included rests with the banker, comfort is routinely requested for certain
income statement items, including net sales, total and per share amounts of
income before extraordinary items and of net income.
13 Include only if there are selected financial data that have been derived
from financial statements not included in the Registration Statement and the
Prospectus.
14 In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, REPORTING ON CONDENSED FINANCIAL
STATEMENTS AND SELECTED FINANCIAL DATA, and include in their report in the
Registration Statement and the Prospectus the paragraph contemplated by SAS
No. 42.9. This situation may arise only if the Selected Financial Data do not
include interim period data and the five-year selected data are derived
entirely from financial statements audited by the auditors whose report is
included in the Registration Statement and the Prospectus. If the guidelines
set forth in SAS No. 42 are followed and the accountant's report as included
in the Registration Statement and the Prospectus includes the additional
language prescribed by SAS No. 42.9, the bracketed language may be eliminated.
15 This language should be included when the Registration Statement and the
Prospectus include earnings or other data for a period after the date of the
latest financial statements in the Registration Statement and the Prospectus,
but the unaudited interim financial statements from which the earnings or
other data is derived is not included in the Registration Statement and the
Prospectus. The blank should be filled in with a description of the financial
statement item(s) included.
16 If an audit or a review in accordance with SAS No. 71 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro forma
financial statements is not otherwise available, the accountants should be
requested to perform certain other procedures with respect to such pro forma
financial statements. See Example O of SAS No. 72.
17 This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement and the Prospectus for
which comfort may be given, including (but not limited to) amounts appearing
in the Registration Statement and the Prospectus narrative and other summary
financial data appearing in tabular form (e.g., the capitalization table).
18 Accountants' services with respect to a financial forecast may be in one
of three forms: an examination of the forecast, a compilation of the forecast
or the application of agreed-upon procedures to the forecast. If the
accountant is to perform an examination of the forecast included in the
Registration Statement and the Prospectus, delivery of the related report
should be treated separately in Section 5(f) as follows (remember to change
subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is executed by the
Company, you shall have received from _________________ a report, dated such
date, in form and substance satisfactory to you, together with signed or
reproduced copies of such report for each of the other Underwriters, stating
that, in their opinion, the forecasted financial statements for the [relevant
period or periods] included in the Registration Statement and the Prospectus
are presented in conformity with guidelines for presentation of a forecast
established by the AICPA, and that the underlying assumptions provide a
reasonable basis for management's forecast.
If the accountant is to perform a compilation of the forecasted financial
statements included in the Registration Statement and the Prospectus, delivery
of the related report should be treated separately in Section 5(e) as follows:
(f) At the time that the applicable Terms Agreement is executed by the
Company, you shall have received from _________________ a report, dated such
date, in form and substance satisfactory to you, together with signed or
reproduced copies of such report of each of the other Underwriters, stating
that they have compiled the forecasted financial statements for the [relevant
period or periods] included in the Registration Statement and the Prospectus
in accordance with the guidelines established by the AICPA.
Finally, if the accountant is to perform agreed-upon procedures on a forecast
included in the Registration Statement and the Prospectus, SAS No. 72 requires
that the accountant first prepare a compilation report with respect to the
forecast and attach that report to the comfort letter. The accountant may then
report on specific procedures performed and findings obtained.
Exhibit 10.2
RECKSON OPERATING PARTNERSHIP, L.P.
(a Delaware limited partnership)
Debt Securities
TERMS AGREEMENT
March 23, 1999
To: Reckson Operating Partnership, L.P.
225 Broadhollow Road
Melville, New York 11747
Ladies and Gentlemen:
We understand that Reckson Operating Partnership, L.P., a Delaware
limited partnership (the "Operating Partnership") proposes to issue and sell
$100,000,000 aggregate principal amount of the Operating Partnership's 7.400%
Notes due March 15, 2004 (the "2004 Notes") and $200,000,000 aggregate
principal amount of the Operating Partnership's 7.750% Notes due March 15,
2009 (the "2009 Notes," and together with the 2004 Notes, the "Notes").
Subject to the terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the respective aggregate principal amount of Notes
set forth below opposite their names at the purchase price set forth below, to
the extent any are purchased.
Principal Amount of Principal Amount of
Underwriter 2004 Notes 2009 Notes
- ----------- ---------------------- ----------------
Goldman, Sachs & Co. $ 60,000,000 $ 120,000,000
Chase Securities Inc. 8,000,000 16,000,000
Donaldson, Lufkin & Jenrette 8,000,000 16,000,000
Securities Corporation
Merrill Lynch, Pierce, Fenner &
Smith Incorporated 8,000,000 16,000,000
Salomon Smith Barney Inc. 8,000,000 16,000,000
Warburg Dillon Read LLC 8,000,000 16,000,000
---------------------- ---------------
Total $100,000,000 $ 200,000,000
The Underwritten Securities shall have the following terms:
Title: 7.400% Notes due March 15, 2004 (the
"2004 Notes")
7.750% Notes due March 15, 2009 (the
"2009 Notes")
Rank: The Notes will be unsecured obligations
and will rank equally with each other and
with all of our other unsecured senior
indebtedness, except that the Notes will
be effectively subordinated to all of our
secured debt and to all debt of our
subsidiaries.
Ratings Baa3 by Moody's Investors Service
BBB- by Standard & Poor's
Aggregate Principal Amount: $100,000,000 of 2004 Notes
$200,000,000 of 2009 Notes
Aggregate Principal Amount of
Option Underwritten Securities: N/A
Initial public offering price: For the 2004 Notes, 99.828% of the
principal amount, plus accrued interest
or amortized original issue discount
amount, if any, from the date of
issuance; for the 2009 Notes, 99.717% of
the principal amount, plus accrued
interest or amortized original issue
discount amount, if any, from the date of
issuance.
Purchase price per Note: For the 2004 Notes, 99.228% of the
principal amount, plus accrued interest
or amortized original issue discount
amount, if any, from the date of issuance
(payable in same day funds); for the 2009
Notes, 99.067% of the principal amount,
plus accrued interest or amortized
original issue discount amount, if any,
from the date of issuance (payable in
same day funds).
Interest rates: The interest rate for the 2004 Notes is
7.400%; the interest rate for the 2009
Notes is 7.750%.
Interest Payment Dates: Interest on the Notes is payable
semi-annually in arrears on March 15 and
September 15 of each year, commencing
September 15, 1999.
Maturity Dates: The 2004 Notes will mature on March 15,
2004 and the 2009 Notes will mature on
March 15, 2009.
Redemption provisions: The Notes are redeemable at any time at
the option of the Operating Partnership,
in whole or in part, at a redemption
price equal to the sum of (i) the
principal amount of the notes (or portion
thereof) being redeemed plus accrued
interest thereon to the redemption date
and (ii) the Make-Whole Amount, if any,
with respect to such notes (or portion
thereof).
Sinking Fund requirements: N/A
Conversion provisions: N/A
Other terms and conditions: The 2004 Notes and the 2009 Notes shall
be in the form of Exhibits A and B,
respectively, to the Officers'
Certificate, dated as of March 26, 1999,
of certain officers of Reckson Associates
Realty Corp., as general partner of the
Operating Partnership.
Closing date and location: March 26, 1999 at the offices of Brown &
Wood LLP, One World Trade Center, New
York, New York 10048.
All of the provisions contained in the document attached as Annex I
hereto entitled "RECKSON OPERATING PARTNERSHIP, L.P. -- Debt Securities --
UNDERWRITING AGREEMENT" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
Please accept this offer no later than 4:30 o'clock p.m. (New York
City time) on March 23, 1999 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
----------------------------
(Goldman, Sachs & Co.)
Acting on behalf of itself and the other
named Underwriters.
RECKSON OPERATING PARTNERSHIP, L.P.
By: RECKSON ASSOCIATES REALTY CORP., its sole general partner
By: /s/ Michael Maturo
-----------------------------
Name:
Title: