Exhibit 1.1
EXECUTION VERSION
$350,000,000
COLUMBIA PROPERTY
TRUST OPERATING PARTNERSHIP, L.P.
4.150% Senior Notes due 2025
Underwriting Agreement
March 9, 2015
J.P. Morgan
Securities LLC
383 Madison Avenue
New York, New York 10179
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Wells Fargo Securities, LLC
550 South Tryon Street
Charlotte, North Carolina 28202
As Representatives of the
several Underwriters listed
in
Schedule 1 hereto
Ladies and Gentlemen:
Columbia Property Trust Operating Partnership, L.P., a Delaware limited partnership (the “Company”), proposes to issue and sell to
the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as Representatives (the “Representatives”), $350,000,000 principal amount of its 4.150% Senior Notes due 2025 (the
“Securities”). The Securities will be issued pursuant to an Indenture (the “Base Indenture”) to be dated as of the Closing Date (as defined below) among the Company, Columbia Property Trust, Inc., a Maryland corporation (the
“Parent”) and U.S. Bank National Association, as trustee (the “Trustee”), as amended by a Supplemental Indenture (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) to be
dated as of the Closing Date, and will be initially guaranteed on an unsecured senior basis by the Parent (the “Guarantee”).
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The Company and the Parent hereby confirm their agreement with the several Underwriters
concerning the purchase and sale of the Securities, as follows:
1.
Registration Statement
. The Company has prepared and filed with
the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on
Form S-3 (File No. 333-198764), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary
Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before it became effective, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of sales of the Securities. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and
any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when
sales of the Securities were first made (the “Time of Sale”), the following information shall have been prepared (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated March 9, 2015, and each
“free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
The Company
hereby confirms its agreement with the several Underwriters concerning the purchase and resale of the Securities, as follows:
2.
Purchase of the Securities by the Underwriters
.
(a) The Company agrees to issue and sell the Securities to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the
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conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in
Schedule 1 hereto at a price equal to 99.209% of the principal amount thereof plus accrued interest, if any, from March 12, 2015 to the Closing Date. The Company will not be obligated to deliver any of the Securities except upon payment for all
the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of
the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company acknowledges and
agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and
that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter, in which case each Underwriter shall cause its affiliates to comply with applicable securities laws.
(d) Payment for and delivery of the Securities will be made at the offices of Davis Polk & Wardwell LLP at 10:00 A.M., New York City
time, on March 12, 2015, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and
delivery is referred to herein as the “Closing Date”.
(e) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(f) The Company and the
Parent acknowledge and agree that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Parent with respect to the offering of Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Parent or any other person. Additionally, neither the Representatives nor the other Underwriters are advising the
Company, the Parent or any other person as to any legal, tax,
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investment, accounting or regulatory matters in any jurisdiction. The Company and the Parent shall consult with their own advisors concerning such matters and shall be responsible for making
their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor the other Underwriters shall have any responsibility or liability to the Company or the Parent with respect thereto. Any
review by the Representatives or the other Underwriters of the Company, the Parent and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such other
Underwriters, as the case may be, and shall not be on behalf of the Company, the Parent or any other person.
3.
Representations and
Warranties of the Company and the Parent
. The Company and the Parent jointly and severally represent and warrant to each Underwriter that:
(a)
Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the Parent make no representation or warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
(b)
Time of Sale Information and Prospectus.
The Preliminary Prospectus, as of its date, did not, the Time of Sale Information, at the
Time of Sale, did not, and at the Closing Date, will not, and the Prospectus, in the form first used by the Underwriters to confirm sales of the Securities and as of the Closing Date, will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the Parent make no representation or warranty with respect
to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus,
the Time of Sale Information or the Prospectus.
(c)
Issuer Free Writing Prospectus
. The Company and the Parent (including their
agents and Representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not
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prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy the Securities (each such communication by the Company, the Parent or their agents and Representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Annex A hereto, including a term sheet substantially in the form of Annex B hereto as constituting part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each
case used in accordance with Section 4(d). Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the Parent
make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(d)
Registration Statement and
Prospectus.
The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no
notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission;
as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively, the “
Trust Indenture Act
”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact or necessary in order to
make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were
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made, not misleading;
provided
that the Company makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e)
Incorporated Documents.
The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time
of Sale Information, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f)
Financial Statements.
The financial statements and the related notes thereto included or incorporated by reference in each of the
Registration Statement, the Time of Sale Information and the Prospectus comply, in all material respects, with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder, as
applicable, and present fairly, in all material respects, the consolidated financial position of the Parent and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by
reference in each of the Registration Statement, the Prospectus and the Time of Sale Information present fairly the information required to be stated therein (except as otherwise noted therein); and the other financial information included or
incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Parent and its subsidiaries and presents fairly in all material respects the
information shown thereby. The interactive data in eXtensbile Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information fairly presents the information called for
in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(g)
No
Material Adverse Change.
Since the date of the most recent financial statements of the Parent included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus (i) there has not
been any change in the capital stock or long-term debt of the Parent or any of its
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subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Parent on any class of capital stock, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Parent and its subsidiaries taken as a whole; (ii) neither the
Parent nor any of its subsidiaries has entered into any transaction or agreement (other than in the ordinary course of business) that is material to the Parent and its subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Parent and its subsidiaries taken as a whole; and (iii) neither the Parent nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in the case of clauses (i), (ii) and
(iii) above, as otherwise disclosed in the Registration Statement, the Time of Sale Information or in the Prospectus.
(h)
Organization and Good Standing.
The Company and the Parent have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the
business, properties, management, financial position or results of operations of the Parent and its subsidiaries taken as a whole or on the performance by the Company and the Parent of their respective obligations under the Securities and the
Guarantee (a “Material Adverse Effect”). The Parent does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Parent’s annual report on Form
10-K for the fiscal year ended December 31, 2014, except for entities that have been omitted pursuant to Item 601(b)(21) of Regulation S-K.
(i)
Capitalization.
The Parent has an authorized capitalization as set forth in each of the Registration Statement, the Time of Sale
Information and the Prospectus under the heading “Capitalization”; and all the outstanding shares of capital stock or other equity interests of each subsidiary of the Parent (other than any equity interests in a joint venture) have been
duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Parent, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of
any third party (other than liens, charges, encumbrances, security interests or other claims to secure indebtedness and liabilities that exist under the Parent’s existing debt facilities).
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(j)
Due Authorization.
The Company and the Parent have full right, power and authority to
execute and deliver this Agreement, the Securities and the Indenture, including the Guarantee set forth therein (collectively, the “Transaction Documents”), as applicable, and to perform their respective obligations hereunder and
thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(i)
The Indenture
. The Indenture has been duly authorized by the Company and the Parent, and upon effectiveness of the Registration
Statement, the Base Indenture was duly qualified under the Trust Indenture Act, and, when duly executed and delivered in accordance with its terms by each of the parties thereto, each of the Base Indenture and the Supplemental Indenture will
constitute a valid and legally binding agreement of the Company and the Parent enforceable against the Company and the Parent in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); and on the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(k)
The Securities and the Guarantee
. The Securities have been duly authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantee has been duly authorized by the Parent and, when the Securities have been duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be a valid and legally binding obligation of the Parent, enforceable against the Parent in accordance with its terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture.
(l)
Underwriting Agreement.
This Agreement has been duly authorized, executed and
delivered by the Company and the Parent, and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company and the Parent enforceable against the
Company and the Parent in accordance with its terms, subject to the Enforceability Exceptions, and except that rights to indemnity and contribution thereunder may be limited by applicable law and public policy.
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(m)
Descriptions of the Transaction Documents
. Each Transaction Document conforms in all
material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(n)
No Violation or Default.
Neither the Parent nor any of its subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Parent or any of its subsidiaries is a party or by which the Parent or any of its subsidiaries is bound or to which any of the property or assets of the
Parent or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(o)
No Conflicts.
The execution, delivery and performance by the Company and the Parent of each of the Transaction Documents to which
it is a party, the issuance and sale of the Securities (including the Guarantee) and compliance by the Company and the Parent with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Parent or
any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Parent or any of its subsidiaries is a party or by which the Parent or any of its subsidiaries is bound or to
which any of the property or assets of the Parent or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Parent or any of its subsidiaries or
(iii) assuming the accuracy of the representations made herein by the Underwriters, result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.
(p)
No Consents Required
. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution, delivery and performance by the Company and the Parent of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the
Guarantee) and compliance by the Company and the Parent with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders
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and registrations or qualifications (i) as may be required under applicable state securities laws in connection with the purchase and resale of the Securities by the Underwriters or
(ii) which have been obtained prior to the Closing Date.
(q)
Legal Proceedings.
Except as described in each of the
Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Parent or any of its subsidiaries is or may be a party or to
which any property of the Parent or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Parent or any of its subsidiaries, could reasonably be expected to have a Material Adverse
Effect; to the knowledge of the Company and the Parent, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or by others; and (i) there are no such current or pending
actions that are required under the Securities Act to be described in the Registration Statement, the Time of Sale Information or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus
and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale
Information and the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.
(r)
Independent Accountants.
Deloitte & Touche LLP has certified certain financial statements of the Parent and its
subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus and is an independent public accountant with respect to the Parent and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(s)
Title to Real and Personal Property.
The Parent and its subsidiaries have good and marketable title (or, as to properties located
in Texas, good and indefeasible title) in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of the Parent and its subsidiaries taken as a whole, in
each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except (i) those that do not materially interfere with the use made and proposed to be made of such property by the Parent and its subsidiaries,
(ii) the mortgages and related liens on any of the real property to the extent permitted by the Indenture, or (iii) those that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Each of
the properties owned by the Parent and its subsidiaries complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes,
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laws and regulations and laws relating to access to such properties), except if and to the extent described in each of the Registration Statement, the Time of Sale Information and the Prospectus
and except for such failures to comply as would not reasonably be expected to result in a Material Adverse Effect; there is no pending or, to the Company’s and the Parent’s knowledge, threatened condemnation, zoning change, proceeding or
action that could reasonably be expected in any material respect to affect the size of, use of, improvements of, construction on, or access to any of the properties of the Parent and its subsidiaries, except if and to the extent described in each of
the Registration Statement, the Time of Sale Information and the Prospectus.
(t)
Title to Intellectual Property.
Except to the
extent described in the Time of Sale Information or the Prospectus and except as would not reasonably be expected to result in a Material Adverse Effect, the Parent and its subsidiaries own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their respective businesses; and, to the knowledge of the Company and the Parent, the conduct of their respective businesses will not conflict in any material respect with any such
rights of others, and the Parent and its subsidiaries have not received any written notice of any claim of infringement of or conflict with any such rights of others.
(u)
No Undisclosed Relationships.
No relationship, direct or indirect, exists between or among the Parent or any of its subsidiaries,
on the one hand, and the directors, officers, stockholders or other affiliates of the Parent or any of its subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement, the Time of Sale
Information and the Prospectus and that is not so described in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(v)
Investment Company Act.
None of the Company, the Parent or any of its subsidiaries is, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus none of them will be, an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(w)
Taxes.
The Parent and its subsidiaries have paid all material federal, state, local and foreign taxes that are due and payable
through the date hereof and filed all material tax returns required to be paid or filed through the date hereof or have requested extensions thereof; and except as otherwise disclosed in each of the Registration Statement, the Time of Sale
Information and the Prospectus, there is no
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material tax deficiency that has been, or could reasonably be expected to be, asserted against the Parent or any of its subsidiaries or any of their respective properties or assets (except for
any such deficiency that is being contested in good faith).
(x)
Licenses and Permits.
The Parent and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or
lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Parent nor any of its subsidiaries has received written
notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(y)
No Labor Disputes.
No labor disturbance by or dispute with employees of the Parent or any of its subsidiaries exists or, to the
knowledge of the Company and the Parent, is contemplated or threatened and neither the Company nor any Parent is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the Parent’s or any of the
Parent’s subsidiaries’ principal suppliers, contractors or customers, except as would not have a Material Adverse Effect.
(z)
Compliance With Environmental Laws.
(i) Each property owned, leased or operated by the Parent or any of its subsidiaries, including, without limitation, the Environment (as defined below) within the perimeter boundaries of and associated
with such property, is free of any Hazardous Substance (as defined below), except for Hazardous Substances that would not reasonably be expected to result in a Material Adverse Effect; (ii) no condition, including any Release, exists on, in,
under or from any property owned, leased or operated by the Parent or any of its subsidiaries or, to the knowledge of the Company and the Parent, other property that has resulted or could result in the incurrence of liabilities by the Parent or any
of its subsidiaries under or any violations by the Parent or any of its subsidiaries of any Environmental Law, give rise to the imposition of any Lien under any Environmental Law, or cause or constitute a health, safety or environmental hazard to
any property, person or entity, except in each case that would not reasonably be expected to have a Material Adverse Effect; (iii) neither the Parent or any subsidiary nor, to the knowledge of the Company and the Parent, any tenant of any of
the properties owned, leased or operated by the Parent or any of its subsidiaries has received any notice of a claim, potential liability or violation under or pursuant to any Environmental Law including with respect to Hazardous Substances on or
originating from such property, except for any such claims which would not reasonably be expected to have a Material Adverse Effect; (iv) no property
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owned, leased or operated by the Parent or any of its subsidiaries is included or, to the knowledge of the Company and the Parent, proposed for inclusion on the National Priorities List issued
pursuant to the Comprehensive Environmental Response Compensation Liability Act (“CERCLA”) by the United States Environmental Protection Agency (the “EPA”), nor has the Parent or any subsidiary received any notice from the EPA or
any other governmental authority proposing the inclusion of any such property on such list; (v) the Parent and each of its subsidiaries and, to the knowledge of the Company and the Parent, each tenant at any of the properties owned, leased or
operated by the Parent and its subsidiaries (A) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (B) are in compliance with all terms and
conditions of any such permit, license or approval and all applicable Environmental Laws, except in each case where such noncompliance, failure to receive required permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses, approvals or applicable Environmental Laws would not reasonably be expected to have a Material Adverse Effect; and (vi) neither the Parent nor its subsidiaries (nor their respective predecessor entities)
are subject to any costs or liabilities arising under Environmental Laws or resulting from any Hazardous Substances (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would reasonably be expected to have a Material Adverse Effect.
As used herein: “Hazardous Substance” shall include, without limitation, any hazardous substance, hazardous waste, hazardous
building materials, toxic substance, pollutant, solid waste or similarly designated materials, including, without limitation, oil, petroleum or any petroleum-derived substance or waste, asbestos or asbestos-containing materials, lead-based paint,
PCBs, pesticides, explosives, radioactive materials, dioxins, urea formaldehyde insulation or any hazardous constituent of any such substance, pollutant or waste identified or regulated under any Environmental Law; “Environment” shall mean
any surface water, drinking water, ground water, soil, land surface, subsurface strata, river sediment, buildings, structures, and ambient, workplace and indoor air; “Environmental Law” shall mean all other applicable federal, state, local
and foreign laws (including the common law), ordinances, regulations, rules, orders, decisions and permits relating to the protection of the environment, human health and safety as affected by Hazardous Substances, or natural resources or the
regulation of hazardous substances or wastes, pollutants, or contaminants; “Lien” shall mean, with respect to any securities, assets or other property owned, leased or operated by the Parent or any of its subsidiaries, any mortgage, deed
of trust, pledge, security interest, lien, encumbrance, penalty, fine, charge, assessment, judgment or other liability in, on or affecting such securities, assets or other property; and “Release” shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, emanating or disposing of any Hazardous
13
Substance into the Environment, including, without limitation, the abandonment or discard of barrels, containers, tanks (including, without limitation, underground storage tanks) or other
receptacles containing or previously containing any Hazardous Substance or any release, emission, discharge or similar term, as those terms are defined or used in any applicable Environmental Law.
(aa)
Compliance With ERISA.
(i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), for which the Parent, the Company or any member of their respective “Controlled Groups” (defined as any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code, whether or not waived, has occurred or is reasonably expected to occur; (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi) neither the
Parent nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect
of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA).
(bb)
Disclosure
Controls
. The Parent and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by
the Parent in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure
that such information is accumulated and communicated to the Parent’s management as appropriate to allow timely decisions regarding required disclosure. The Parent and its subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15(e) of the Exchange Act.
(cc)
Accounting Controls.
The Parent and its
subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or
14
under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Parent and its subsidiaries maintain internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensbile Business Reporting Language included or incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale
Information and the Prospectus, there are no material weaknesses or significant deficiencies in the Parent’s or any subsidiary’s internal controls.
(dd)
Insurance.
The Parent and its subsidiaries have insurance covering their respective properties, operations, personnel and
businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are prudent and customary in the business in which the Parent and its subsidiaries are engaged; and neither the Parent
nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(ee)
No Unlawful Payments.
Neither the Parent nor any of its subsidiaries nor, to the knowledge of the Company and the Parent, any
director, officer, agent, employee or other person associated with or acting on behalf of the Parent or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or
improper payment or benefit. The Parent and its subsidiaries have instituted, maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
15
(ff)
Compliance with Money Laundering Laws
. The operations of the Parent and its
subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company
and the Parent, threatened.
(gg)
Compliance with OFAC
. None of the Parent, any of its subsidiaries or, to the knowledge of the
Company and the Parent, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to or the target of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity in any manner that will result in a violation of any economic sanctions imposed by the United States (including any administered or enforced by OFAC, the U.S. Department of State, or the Bureau of Industry
and Security of the U.S. Department of Commerce) (collectively, “Sanctions” and such persons, “Sanction Persons”) by, or would reasonably be expected to result in the imposition of Sanctions against, any person (including any
person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(hh)
Solvency.
On and immediately
after the Closing Date, the Company and each Parent (after giving effect to the issuance of the Securities and the other transactions related thereto as described in each of the Registration Statement, the Time of Sale Information and the
Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company or
the Parent, as applicable, is not less than the total amount required to pay the liabilities of the Company or the Parent, as applicable, on its total existing debts and liabilities (including contingent liabilities) as they become absolute and
matured; (ii) the Company or the Parent, as applicable, is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business;
(iii) assuming consummation of the issuance of the Securities as contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus, the Company or the Parent, as applicable, is not incurring debts or
liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company or the Parent, as applicable, is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which
its property would
16
constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company or the Parent, as applicable, is engaged; and (v) the
Company or the Parent, as applicable, is not a defendant in any civil action that would result in a judgment that the Company or the Parent, as applicable, is or would become unable to satisfy.
(ii)
No Restrictions on Dividends
. No subsidiary of the Company or the Parent is currently prohibited, directly or indirectly, from
paying any dividends to the Company or the Parent, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated by the Registration Statement, the Time of Sale Information and the Prospectus or to the extent such limitation would
not impair the Parent’s ability to maintain its status as a real estate investment trust under the Code (as defined below).
(jj)
No Broker’s Fees.
Neither the Parent nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any
Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(kk)
No Stabilization.
Neither the Company nor the Parent has taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(ll)
Statistical and
Market Data
. Nothing has come to the attention of the Company or the Parent that has caused the Company or any Parent to believe that the statistical and market-related data included or incorporated by reference in each of the Registration
Statement, the Time of Sale Information and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(mm)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Parent or to the knowledge of the Company or the Parent,
any of the Parent’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(nn)
REIT Status
. The Parent has
been organized and operated in conformity with the requirements for qualification and taxation as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the “Code”) for all taxable years commencing with its
taxable year ended December 31, 2003 and through its
17
taxable year ended December 31, 2014. The Parent has filed an election to be taxable as a real estate investment trust for its taxable year ended December 31, 2003, and such election
has not been terminated. The Parent’s current and proposed method of operation will permit it to continue to meet the requirements for taxation as a real estate investment trust under the Code. The Parent intends to continue to operate in a
manner which would permit it to qualify as a real estate investment trust under the Code.
(oo)
No Transfer Taxes
. There are no
transfer taxes or other similar fees or charges under federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the sale of the Securities by
the Company.
(pp)
No Registration Rights
. No person has the right to require the Company or any of its subsidiaries to register
any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(qq)
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the Time of Sale Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(rr)
Status under the Securities Act
. The Company is not an ineligible issuer and is a well-known seasoned issuer,
in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
4.
Further Agreements of the Company and the Parent
. The Company and the Parent jointly and severally covenant and agree with each
Underwriter that:
(a)
Required Filings.
The Company and the Parent will file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex B hereto) to the extent required by Rule 433 under the
Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day succeeding the
18
date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule
456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b)
Delivery of Copies.
The Company will deliver, without charge, to the Underwriters as many copies of the Registration Statement, the Preliminary Prospectus, any other Time of Sale Information, any Issuer Free Writing Prospectus and the
Prospectus (including all amendments and supplements thereto) as the Representatives may reasonably request.
(c)
Prospectus,
Amendments or Supplements.
Before finalizing the Prospectus or making or distributing any amendment or supplement to any of the Time of Sale Information or the Prospectus or filing with the Commission any document that will be incorporated by
reference therein, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Prospectus or such amendment or supplement or document to be incorporated by reference therein for review, and will not
distribute any such proposed Prospectus, amendment or supplement or file any such document with the Commission to which the Representatives reasonably object.
(d)
Additional Issuer Free Writing Prospectuses.
Before making, preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not make, prepare, use, authorize, approve, refer to or file
any such Issuer Free Writing Prospectus to which the Representatives reasonably object.
(e)
Notice to the Representatives.
The
Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to
the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission or any governmental or regulatory authority of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any of the Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or
pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event at any time prior to the completion of the initial offering of the Securities as a result of which any of the Time of Sale Information, any Issuer Free
19
Writing Prospectus or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances existing when such Time of Sale Information, Issuer Free Writing Prospectus or the Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt
by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any
notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent
the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any of the Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or suspending any such
qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(f)
Time of
Sale Information.
If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Time of
Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters such
amendments or supplements to any of the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended
or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.
(g)
Ongoing Compliance of the Prospectus.
If at any time prior to the completion of the initial offering of the Securities (i) any
event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters such amendments or supplements to the Prospectus (or any document to be filed with
the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented
20
(including such document to be incorporated by reference therein) will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law.
(h)
Blue Sky Compliance.
The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for the offering and resale of the Securities;
provided
that neither the
Company nor the Parent shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to
service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(i)
Clear Market
. During the period from the date hereof through and including the Closing Date, the Company and the Parent will not,
without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the Parent and having a tenor of more than one year.
(j)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration
Statement, the Time of Sale Information and the Prospectus under the heading “Use of proceeds”.
(k)
DTC.
The Company
will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through The Depository Trust Company (“DTC”).
(l)
No Stabilization.
Neither the Company nor the Parent will take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m)
Record
Retention
. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5.
Certain Agreements of the Underwriters
. Each Underwriter hereby represents and agrees that it has not and will not use, authorize
use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not
21
trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to
Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing. Notwithstanding the foregoing, the
Underwriters may use the Pricing Term Sheet referred to in Annex B hereto without the consent of the Company.
6.
Conditions of
Underwriters’ Obligations.
The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and the Parent of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a)
Registration Compliance; No Stop Order
. No order suspending the
effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b)
Representations and Warranties.
The representations and warranties of the Company and the Parent contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; and the statements of the Company, the Parent and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of
this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company, the Parent or any of its subsidiaries by any “nationally
recognized statistical rating organization”, as such term as defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company, the Parent or any of its subsidiaries (other than an announcement with positive implications of a possible
upgrading or no implication of a possible downgrading).
22
(d)
No Material Adverse Change.
No event or condition of a type described in
Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the
Registration Statement, the Time of Sale Information and the Prospectus.
(e)
Officer’s Certificate.
The Representatives shall
have received on and as of the Closing Date a certificate of an executive officer of the Company and of the Parent (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the
Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(b), (c) and (d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company and the Parent in
this Agreement are true and correct and that the Company and the Parent have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect
set forth in paragraphs (a), (c) and (d) above.
(f)
Comfort Letters.
On the date of this Agreement and on the Closing
Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or
incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days
prior to the Closing Date.
(g)
Opinions and 10b-5 Statement of Counsel for the Company.
King & Spalding, LLP (US),
counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinions (which shall include a tax opinion as to REIT status of the Parent) and 10b-5 statement, dated the Closing Date and addressed
to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C-1 hereto. Venable LLP, counsel for the Parent, shall have furnished to the Representatives, at the request of the Parent,
their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C-2 hereto.
23
(h)
Opinion and 10b-5 Statement of Counsel for the Underwriters.
The Representatives shall
have received on and as of the Closing Date an opinion and 10b-5 statement of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i)
No Legal
Impediment to Issuance.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing
Date, prevent the issuance or sale of the Securities or the issuance of the Guarantee; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantee.
(j)
Good Standing
. The Representatives shall have received (A) on or before the
Closing Date satisfactory evidence of the good standing as of a recent date of the Company and the Parent in their respective jurisdictions of organization and in such other jurisdictions as the Representatives may reasonably request and (B) on
and as of the Closing Date satisfactory evidence of the good standing of the Company and the Parent in their respective jurisdictions of organization and in such other jurisdictions as the Representatives may reasonably request, in each case in
writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(k)
DTC.
The Securities shall be eligible for clearance and settlement through DTC.
(l)
Additional Documents.
On or prior to the Closing
Date, the Company and the Parent shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification
and Contribution
.
(a)
Indemnification of the Underwriters.
The Company and the Parent jointly and severally agree to indemnify
and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without
24
limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein 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 each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(b)
Indemnification of the Company.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the
Company and the Parent, and each of their respective directors and officers and each person, if any, who controls the Company or the Parent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Preliminary
Prospectus, any of the other Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the following: paragraph
3 (for the avoidance of doubt, such paragraph begins “The underwriters initially propose…”), the third and fourth sentences of paragraph 7 (for the avoidance of doubt, such sentences begin “The underwriters have advised
us…” and “The underwriters may discontinue…”, respectively), and paragraph 8 (concerning overallotment, stabilizing transactions and syndicate covering transactions) under the caption “Underwriting (Conflicts of
Interest).”
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall
promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided
that the failure to notify the Indemnifying Person shall not
25
relieve it from any liability that it may have under this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 7. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent
of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall
pay the reasonable fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. The Indemnifying Person shall be entitled to participate in the defense of any claim, and to the
extent that it may wish, assume the defense thereof;
provided
, that after notice from the Indemnifying Person to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Person shall not be liable to such
Indemnified Person under such subsection for any legal expenses of other counsel subsequently incurred by such Indemnified Person, in connection with the defense thereof other;
provided
, further, in any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) counsel to the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to the Indemnified Person that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm
for the Company, the Parent, their respective directors and officers and any control persons of the Company and the Parent shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have
26
requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such settlement, except for any amounts that are being contested in good faith. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes
an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as
to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution.
If the
indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Parent on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Parent on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Parent on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total discounts and commissions received by the Underwriters in connection
therewith, as provided in this Agreement, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Parent on the one hand and the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any Parent or by the Underwriters and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
27
(e)
Limitation on Liability.
The Company, the Parent 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 that
does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8.
Termination
. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company or the Parent shall have been suspended on any exchange or in any over-the-counter market;
(iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets
or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery, of the Securities
on the terms and in the manner contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus.
9.
Defaulting Underwriter
.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder,
the non-defaulting
28
Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after
any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the
non-defaulting
Underwriters
or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of
Sale Information, the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus that effects any such
changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases
Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder
plus such Underwriter’s
pro
rata
share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or
Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to
this Section 9 shall be without liability on the part of the Company or the Parent, except that the Company and the Parent will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the
provisions of Section 7 hereof shall not terminate and shall remain in effect.
29
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company, the Parent or any non-defaulting Underwriter for damages caused by its default.
10.
Payment of Expenses
.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and the
Parent jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any
other Time of Sale Information, any Issuer Free Writing Prospectus and the Prospectus (including any amendment or supplement thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company’s and the Parent’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility
for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including up to $5,000 of fees and expenses of counsel for the
Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties to the extent agreed to
by the parties); (viii) all expenses and application fees incurred in connection with the approval of the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in connection with any “road show”
presentation to potential investors (it being understood that the Company and the Representatives will each bear their own costs of airfare in connection with any “road show” presentation).
(b) If (i) this Agreement is terminated pursuant to Section 8(ii), (ii) the Company for any reason fails to tender the
Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any other reason permitted under this Agreement, the Company and the Parent jointly and severally agree to reimburse the Underwriters
for all out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby; provided, that a defaulting
Underwriter pursuant to Section 9 hereof shall not be entitled to such reimbursement.
11.
Persons Entitled to Benefit of
Agreement
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of each Underwriter
referred to in Section 7 hereof. Nothing in this Agreement is intended
30
or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
12.
Survival
. The respective
indemnities, rights of contribution, representations, warranties and agreements of the Company, the Parent and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Parent or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Parent or the Underwriters.
13.
Certain Defined Terms
. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be
closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
14.
Miscellaneous
.
(a)
Authority of the Representatives.
Any action by the Underwriters hereunder may be taken by the
Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed
or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: (212)834-6081), Attention:
Investment Grade Syndicate Desk – 3rd Floor, Morgan Stanley & Co. Incorporated, 1585 Broadway, 29th Floor, New York, New York 10036, Attention: Investment Banking Division (phone: (212) 761-6691, fax: (212) 507-8999), and
Wells Fargo Securities, LLC, 550 South Tryon Street, 5
th
Floor, Charlotte, North Carolina 28202 (fax: (704) 410-0326), Attention: Transaction Management. Notices to the Company shall be given
to them at Columbia Property Trust Operating Partnership, L.P c/o Columbia Property Trust, Inc., One Glenlake Parkway, Suite 1200, Atlanta, Georgia 30328 (phone: (404) 465-2200, fax: (404) 465-2201), Attention: Chief Financial Officer.
(c)
Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
31
(d)
Counterparts.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(e)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(f)
Headings.
The
headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided
below.
[
Signature Pages Follow
]
32
Very truly yours,
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COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
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By:
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Columbia Property Trust, Inc.
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Its:
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General Partner
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By:
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/s/ James A. Fleming
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Name:
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James A. Fleming
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Title:
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Executive Vice President and Chief Financial Officer
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COLUMBIA PROPERTY TRUST, INC.
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By:
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/s/ James A. Fleming
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Name:
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James A. Fleming
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Title:
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Executive Vice President and Chief Financial Officer
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[Signature page to Underwriting Agreement]
33
Accepted as of the date first written above.
J.P. MORGAN SECURITIES LLC
MORGAN STANLEY & CO. LLC
WELLS FARGO SECURITIES, LLC
For themselves and on behalf
of the
several Underwriters listed
in Schedule 1 hereto.
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J.P. MORGAN SECURITIES LLC
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By
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/s/ Som Bhattacharyya
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Name:
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Som Bhattacharyya
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Title:
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Vice President
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MORGAN STANLEY & CO. LLC
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By
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/s/ Tom Boyle
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Name:
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Tom Boyle
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Title:
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Executive Director
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WELLS FARGO SECURITIES, LLC
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By
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/s/ Carolyn Hurley
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Name:
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Carolyn Hurley
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Title:
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Director
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[Signature page to Underwriting Agreement]
34
Schedule 1
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Underwriter
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Principal Amount
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J.P. Morgan Securities LLC
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$
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87,500,000
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Morgan Stanley & Co. LLC
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$
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70,000,000
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Wells Fargo Securities, LLC
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$
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70,000,000
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Jefferies LLC
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$
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29,750,000
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U.S. Bancorp Investments, Inc.
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$
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29,750,000
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Goldman, Sachs & Co.
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$
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8,750,000
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Mitsubishi UFJ Securities (USA), Inc.
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$
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8,750,000
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Regions Securities LLC
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$
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8,750,000
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BBVA Securities Inc.
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$
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5,250,000
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BMO Capital Markets Corp.
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$
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5,250,000
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Capital One Securities, Inc.
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$
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5,250,000
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Comerica Securities, Inc.
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$
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5,250,000
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Fifth Third Securities, Inc.
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$
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5,250,000
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SMBC Nikko Securities America, Inc.
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$
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5,250,000
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TD Securities (USA) LLC
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$
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5,250,000
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Total
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$
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350,000,000
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ANNEX A
Additional Time of Sale Information
1. Term sheet
containing the terms of the securities, substantially in the form of Annex B.
ANNEX B
[Pricing Term Sheet Follows]
Filed Pursuant to Rule 433
Registration Statement No. 333-198764
Pricing Term Sheet
COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
Pricing Term Sheet
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Issuer:
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Columbia Property Trust Operating Partnership, L.P.
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Guarantor:
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Columbia Property Trust, Inc.
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Size:
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$350,000,000
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Trade Date:
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March 9, 2015
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Settlement Date:
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March 12, 2015
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Maturity:
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April 1, 2025
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Interest Payment Dates:
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April 1 and October 1, commencing October 1, 2015
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Coupon:
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4.150%
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Public Offering Price:
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99.859% of face amount
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Yield to Maturity:
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4.167%
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Spread to Benchmark Treasury:
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T + 197 bps
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Benchmark Treasury:
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UST 2.000% due February 15, 2025
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Benchmark Treasury Price / Yield:
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98-08 / 2.197%
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Optional Redemption:
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Make-whole call:
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Prior to January 1, 2025 at T+30 bps
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Par Call:
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On or after January 1, 2025
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Minimum Denominations:
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$2,000 and integral multiples of $1,000 in excess thereof
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CUSIP / ISIN:
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19828J AA6 / US19828JAA60
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Joint Book-Running Managers:
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J.P. Morgan Securities LLC
Morgan Stanley &
Co. LLC
Wells Fargo Securities, LLC
Jefferies LLC
U.S. Bancorp Investments, Inc.
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Co-managers:
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Goldman, Sachs & Co.
Regions Securities
LLC
Mitsubishi UFJ Securities (USA), Inc.
BBVA Securities
Inc.
BMO Capital Markets Corp.
Capital One Securities,
Inc.
Comerica Securities, Inc.
Fifth Third Securities,
Inc.
SMBC Nikko Securities America, Inc.
TD Securities (USA)
LLC
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The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling J.P. Morgan
Securities LLC collect at (212) 834-4533; Morgan Stanley & Co. LLC toll-free at (866) 718-1649; or Wells Fargo Securities, LLC toll-free at (800) 645-3751.
ANNEX C-1
[Attached]
ANNEX C-2
[
Attached
]
Exhibit 4.1
COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P., as Issuer
COLUMBIA PROPERTY TRUST, INC., as Guarantor
U.S. BANK NATIONAL ASSOCIATION, as Trustee
INDENTURE
DATED AS OF
MARCH 12, 2015
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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SECTION 101.
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Definitions.
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1
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SECTION 102.
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Compliance Certificates and Opinions.
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11
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SECTION 103.
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Form of Documents Delivered to Trustee.
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11
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SECTION 104.
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Acts of Holders.
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12
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SECTION 105.
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Notices, etc., to Trustee and Issuer.
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13
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SECTION 106.
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Notice to Holders; Waiver.
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14
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SECTION 107.
|
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Counterparts; Effect of Headings and Table of Contents.
|
|
|
14
|
|
|
SECTION 108.
|
|
Successors and Assigns.
|
|
|
14
|
|
|
SECTION 109.
|
|
Severability Clause.
|
|
|
15
|
|
|
SECTION 110.
|
|
Benefits of Indenture.
|
|
|
15
|
|
|
SECTION 111.
|
|
Governing Law.
|
|
|
15
|
|
|
SECTION 112.
|
|
Legal Holidays.
|
|
|
15
|
|
|
SECTION 113.
|
|
Immunity of Stockholders, Directors, Officers and Agents of the Issuer, the General Partner, and any Guarantor.
|
|
|
15
|
|
|
SECTION 114.
|
|
Conflict With Trust Indenture Act.
|
|
|
16
|
|
|
SECTION 115.
|
|
Communication By Holders With Other Holders.
|
|
|
16
|
|
|
|
|
|
ARTICLE 2 SECURITIES FORMS
|
|
|
16
|
|
|
|
|
|
|
SECTION 201.
|
|
Forms of Securities.
|
|
|
16
|
|
|
SECTION 202.
|
|
Form of Trustee’s Certificate of Authentication.
|
|
|
17
|
|
|
SECTION 203.
|
|
Securities Issuable In Global Form.
|
|
|
17
|
|
|
|
|
|
ARTICLE 3 THE SECURITIES
|
|
|
18
|
|
|
|
|
|
|
SECTION 301.
|
|
Amount Unlimited; Issuable In Series.
|
|
|
18
|
|
|
SECTION 302.
|
|
Denominations.
|
|
|
22
|
|
|
SECTION 303.
|
|
Execution, Authentication, Delivery and Dating.
|
|
|
22
|
|
|
SECTION 304.
|
|
Temporary Securities.
|
|
|
24
|
|
|
SECTION 305.
|
|
Registration, Registration of Transfer and Exchange.
|
|
|
26
|
|
|
SECTION 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities.
|
|
|
28
|
|
|
SECTION 307.
|
|
Payment of Interest; Interest Rights Preserved.
|
|
|
29
|
|
|
SECTION 308.
|
|
Persons Deemed Owners.
|
|
|
30
|
|
|
SECTION 309.
|
|
Cancellation.
|
|
|
31
|
|
|
SECTION 310.
|
|
Computation of Interest.
|
|
|
31
|
|
|
SECTION 311.
|
|
Paying Agent To Hold Money In Trust.
|
|
|
31
|
|
|
|
|
|
ARTICLE 4 SATISFACTION AND DISCHARGE; DEFEASANCE
|
|
|
32
|
|
|
|
|
|
|
SECTION 401.
|
|
Satisfaction and Discharge.
|
|
|
32
|
|
|
SECTION 402.
|
|
Defeasance and Covenant Defeasance.
|
|
|
33
|
|
|
SECTION 403.
|
|
Application of Trust Money.
|
|
|
36
|
|
|
SECTION 404.
|
|
Application of Monies Held.
|
|
|
36
|
|
|
SECTION 405.
|
|
Return of Unclaimed Monies.
|
|
|
37
|
|
|
SECTION 406.
|
|
Reinstatement.
|
|
|
37
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE 5 REMEDIES
|
|
|
37
|
|
|
|
|
|
|
SECTION 501.
|
|
Events of Default.
|
|
|
37
|
|
|
SECTION 502.
|
|
Payments of Securities on Default; Suit Therefor.
|
|
|
40
|
|
|
SECTION 503.
|
|
Application of Monies Collected By Trustee.
|
|
|
41
|
|
|
SECTION 504.
|
|
Proceedings By Holders of Securities.
|
|
|
42
|
|
|
SECTION 505.
|
|
Proceedings By Trustee.
|
|
|
43
|
|
|
SECTION 506.
|
|
Remedies Cumulative and Continuing.
|
|
|
43
|
|
|
SECTION 507.
|
|
Direction of Proceedings and Waiver of Defaults By Majority of Holders of Securities.
|
|
|
43
|
|
|
SECTION 508.
|
|
Undertaking To Pay Costs.
|
|
|
44
|
|
|
|
|
|
ARTICLE 6 THE TRUSTEE
|
|
|
44
|
|
|
|
|
|
|
SECTION 601.
|
|
Notice of Defaults.
|
|
|
44
|
|
|
SECTION 602.
|
|
Certain Rights of Trustee.
|
|
|
45
|
|
|
SECTION 603.
|
|
Not Responsible For Recitals or Issuance of Securities.
|
|
|
46
|
|
|
SECTION 604.
|
|
May Hold Securities and Common Stock.
|
|
|
47
|
|
|
SECTION 605.
|
|
Money Held In Trust.
|
|
|
47
|
|
|
SECTION 606.
|
|
Compensation and Reimbursement.
|
|
|
47
|
|
|
SECTION 607.
|
|
Corporate Trustee Required; Eligibility; Conflicting Interests.
|
|
|
48
|
|
|
SECTION 608.
|
|
Resignation and Removal; Appointment of Successor.
|
|
|
48
|
|
|
SECTION 609.
|
|
Acceptance of Appointment by Successor.
|
|
|
49
|
|
|
SECTION 610.
|
|
Merger, Conversion, Consolidation or Succession to Business.
|
|
|
50
|
|
|
SECTION 611.
|
|
Appointment of Authenticating Agent.
|
|
|
51
|
|
|
SECTION 612.
|
|
Certain Duties and Responsibilities of the Trustee.
|
|
|
52
|
|
|
|
|
|
ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY tRUSTEE AND COMPANY
|
|
|
54
|
|
|
|
|
|
|
SECTION 701.
|
|
Disclosure of Names and Addresses of Holders.
|
|
|
54
|
|
|
SECTION 702.
|
|
Reports by Trustee.
|
|
|
54
|
|
|
SECTION 703.
|
|
Reports by Issuer.
|
|
|
54
|
|
|
SECTION 704.
|
|
Issuer to Furnish TRUSTEE Names And Addresses Of Holders.
|
|
|
55
|
|
|
|
|
|
ARTICLE 8 CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
|
|
|
56
|
|
|
|
|
|
|
SECTION 801.
|
|
Issuer May Consolidate on Certain Terms.
|
|
|
56
|
|
|
SECTION 802.
|
|
Issuer Successor to be Substituted.
|
|
|
56
|
|
|
SECTION 803.
|
|
Guarantor May Consolidate on Certain Terms.
|
|
|
57
|
|
|
SECTION 804.
|
|
Guarantor Successor to be Substituted.
|
|
|
58
|
|
|
|
|
|
ARTICLE 9 SUPPLEMENTAL INDENTURES
|
|
|
58
|
|
|
|
|
|
|
SECTION 901.
|
|
Supplemental Indentures without Consent of Holders of Securities.
|
|
|
58
|
|
|
SECTION 902.
|
|
Supplemental Indenture with Consent of Holders of Securities.
|
|
|
59
|
|
|
SECTION 903.
|
|
Effect of Supplemental Indenture.
|
|
|
60
|
|
|
SECTION 904.
|
|
Notation on Securities.
|
|
|
61
|
|
|
SECTION 905.
|
|
Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.
|
|
|
61
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE 10 COVENANTS
|
|
|
61
|
|
|
|
|
|
|
SECTION 1001.
|
|
Payment of Principal, Premium, if any, and Interest.
|
|
|
61
|
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency.
|
|
|
61
|
|
|
SECTION 1003.
|
|
Money for Securities Payments to be Held in Trust.
|
|
|
62
|
|
|
SECTION 1004.
|
|
Existence.
|
|
|
63
|
|
|
SECTION 1005.
|
|
Maintenance of Properties.
|
|
|
64
|
|
|
SECTION 1006.
|
|
Insurance.
|
|
|
64
|
|
|
SECTION 1007.
|
|
Payment of Taxes and Other Claims.
|
|
|
64
|
|
|
SECTION 1008.
|
|
APPOINTMENTS TO FILL VACANCIES IN TRUSTEE’S OFFICE.
|
|
|
64
|
|
|
SECTION 1009.
|
|
Statement as to Compliance.
|
|
|
65
|
|
|
SECTION 1010.
|
|
Additional Amounts.
|
|
|
65
|
|
|
SECTION 1011.
|
|
Waiver of Certain Covenants.
|
|
|
66
|
|
|
SECTION 1012.
|
|
Waiver of Usury, Stay or Extension Laws.
|
|
|
66
|
|
|
|
|
|
ARTICLE 11 REDEMPTION OF SECURITIES
|
|
|
66
|
|
|
|
|
|
|
SECTION 1101.
|
|
Applicability of Article.
|
|
|
66
|
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee.
|
|
|
67
|
|
|
SECTION 1103.
|
|
Selection by Trustee of Securities to be Redeemed.
|
|
|
67
|
|
|
SECTION 1104.
|
|
Notice of Redemption.
|
|
|
67
|
|
|
SECTION 1105.
|
|
Deposit of Redemption Price.
|
|
|
68
|
|
|
SECTION 1106.
|
|
Securities Payable on Redemption Date.
|
|
|
68
|
|
|
SECTION 1107.
|
|
Securities Redeemed in Part.
|
|
|
69
|
|
|
|
|
|
ARTICLE 12 SINKING FUNDS
|
|
|
69
|
|
|
|
|
|
|
SECTION 1201.
|
|
Applicability of Article.
|
|
|
69
|
|
|
SECTION 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities.
|
|
|
70
|
|
|
SECTION 1203.
|
|
Redemption of Securities for Sinking Fund.
|
|
|
70
|
|
|
|
|
|
ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS
|
|
|
70
|
|
|
|
|
|
|
SECTION 1301.
|
|
Applicability of Article.
|
|
|
70
|
|
|
SECTION 1302.
|
|
Repayment of Securities.
|
|
|
71
|
|
|
SECTION 1303.
|
|
Exercise of Option.
|
|
|
71
|
|
|
SECTION 1304.
|
|
When Securities Presented for Repayment Become Due and Payable.
|
|
|
71
|
|
|
SECTION 1305.
|
|
Securities Repaid in Part.
|
|
|
72
|
|
|
|
|
|
ARTICLE 14 MEETINGS OF HOLDERS OF SECURITIES
|
|
|
72
|
|
|
|
|
|
|
SECTION 1401.
|
|
Purpose for Which Meetings May be Called.
|
|
|
72
|
|
|
SECTION 1402.
|
|
Call, Notice and Place of Meetings.
|
|
|
72
|
|
|
SECTION 1403.
|
|
Persons Entitled to Vote at Meetings.
|
|
|
72
|
|
|
SECTION 1404.
|
|
Quorum; Action.
|
|
|
73
|
|
|
SECTION 1405.
|
|
Determination of Voting Rights, Conduct and Adjournment of Meetings.
|
|
|
74
|
|
|
SECTION 1406.
|
|
Counting Votes and Recording Action of Meetings.
|
|
|
74
|
|
|
|
|
|
ARTICLE 15 THE GUARANTEES
|
|
|
75
|
|
|
|
|
|
|
SECTION 1501.
|
|
Guarantee.
|
|
|
75
|
|
|
SECTION 1502.
|
|
Execution and Delivery of Guarantee.
|
|
|
76
|
|
iii
|
|
|
|
|
|
|
|
|
SECTION 1503.
|
|
Limitation of Guarantor’s Liability, Certain Bankruptcy Events.
|
|
|
77
|
|
|
SECTION 1504.
|
|
Application of Certain Terms and Provisions to the Guarantor.
|
|
|
77
|
|
|
SECTION 1505.
|
|
Release of Guarantee.
|
|
|
78
|
|
iv
Reconciliation and tie between Trust Indenture Act and Indenture dated as of March 12, 2015.
|
|
|
|
|
|
|
|
|
|
|
|
|
Trust Indenture
Act Section
|
|
|
|
Indenture
Section
|
|
|
|
|
|
|
|
|
|
|
|
Section 310(a)(1)
|
|
|
|
607
|
|
|
|
|
|
(a)(2)
|
|
|
|
607
|
|
|
|
|
|
(a)(3)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(a)(4)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(a)(5)
|
|
|
|
607
|
|
|
|
|
|
(b)
|
|
|
|
607, 608
|
|
|
|
|
|
Section 311
|
|
|
|
607
|
|
|
|
|
|
Section 312(a)
|
|
|
|
704
|
|
|
|
|
|
(b)
|
|
|
|
115
|
|
|
|
|
|
(c)
|
|
|
|
701
|
|
|
|
|
|
Section 313(a)
|
|
|
|
702
|
|
|
|
|
|
(b)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(c)
|
|
|
|
702
|
|
|
|
|
|
(d)
|
|
|
|
702
|
|
|
|
|
|
Section 314(a)(1)-(3)
|
|
|
|
703
|
|
|
|
|
|
(a)(4)
|
|
|
|
1009
|
|
|
|
|
|
(b)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(c)(1)
|
|
|
|
102
|
|
|
|
|
|
(c)(2)
|
|
|
|
102
|
|
|
|
|
|
(c)(3)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(d)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(e)
|
|
|
|
102
|
|
|
|
|
|
(f)
|
|
|
|
Not Applicable
|
|
|
|
|
|
Section 315(a)
|
|
|
|
612(1)
|
|
|
|
|
|
(b)
|
|
|
|
601
|
|
|
|
|
|
(c)
|
|
|
|
612(2)
|
|
|
|
|
|
(d)
|
|
|
|
612
|
|
|
|
|
|
(e)
|
|
|
|
508
|
|
|
|
|
|
Section 316(a)(last sentence)
|
|
|
|
101 (“Outstanding”)
|
|
|
|
|
|
(a)(1)
|
|
|
|
507
|
|
|
|
|
|
(a)(2)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(b)
|
|
|
|
902
|
|
|
|
|
|
(c)
|
|
|
|
104
|
|
|
|
|
|
Section 317(a)
|
|
|
|
502
|
|
|
|
|
|
(b)
|
|
|
|
311
|
|
|
|
|
|
Section 318(a)
|
|
|
|
114
|
|
|
|
|
|
(b)
|
|
|
|
Not Applicable
|
|
|
|
|
|
(c)
|
|
|
|
114
|
|
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act, which provides that the provisions of
Sections 310 to and including 317 of the 1939 Act that impose duties on any person are a part of and govern every qualified indenture, whether or not physically contained therein.
THIS INDENTURE, dated as of March 12, 2015, by and among COLUMBIA PROPERTY TRUST OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership (the “Issuer”), COLUMBIA PROPERTY TRUST, INC., a Maryland corporation, the Issuer’s sole general partner (the “General Partner,” and in the capacity as guarantor of one or
more series of Securities to be issued hereunder from time to time the “Guarantor”) each having its principal office at One Glenlake Parkway, Suite 1200, Atlanta, Georgia 30328, and U.S. Bank National Association, as Trustee hereunder (the
“Trustee”), having its Corporate Trust Office at 60 Livingston Avenue, EP-MN-WS3C, Saint Paul, Minnesota 55107-1419.
RECITALS
The Issuer may deem it appropriate to issue from time to time for its lawful purposes debt securities (hereinafter called the
“Securities”) evidencing its indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Securities, to be issued in one or more series as provided in this
Indenture.
The General Partner, in its capacity as the sole general partner of the Issuer and as the Guarantor from time to time of
Securities issued, has duly authorized the execution and delivery of this Indenture by the Issuer and for itself, and its Guarantee of the Securities pursuant to the provisions of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act that are deemed to be incorporated into this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the Issuer and
the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
SECTION 101.
|
DEFINITIONS.
|
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article 1 have the meanings assigned to them in this Article 1, and
include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either directly or by reference
therein, have the meanings assigned to them therein;
1
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP (as defined herein);
(4) the words “herein,” “hereof” and “hereunder” and other words
of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5) any
reference to an “Article,” a “Section” or a “Subsection” refers to an Article, Section or Subsection, as the case may be, of this Indenture.
“
Act
,” when used with respect to any Holder, has the meaning specified in Section 104.
“
Additional Amounts
” means any additional amounts which are required by a Security or by or pursuant to a Board
Resolution, under circumstances specified therein, to be paid by the Issuer in respect of certain taxes imposed on certain Holders 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 or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“
Authenticating Agent
” means the Trustee or any authenticating agent appointed by the Trustee pursuant to
Section 611 to act on behalf of the Trustee to authenticate Securities.
“
Bankruptcy Law
” means Title
11 of the U.S. Code or any similar federal or state law for the relief of debtors.
“
Benefited Party
” has
the meaning specified in Section 1501.
“
Board of Directors
” means with respect to:
(a) any Person that is a corporation, the board of directors of the corporation or any committee thereof duly authorized to act
on behalf of such board of directors;
(b) any Person that is a partnership, the Board of Directors of the general partner
of the partnership;
(c) any Person that is a limited liability company, the managing member or members thereof (if a
natural person or natural persons) or, if such managing member or members are not natural persons, the Board of Directors or other controlling committee, as the case may be, of the managing member or members of such limited liability company duly
authorized to act on behalf of such managing member or members; and
(d) any other Person, the board or committee of such
Person serving a similar function.
2
“
Board Resolution
” means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person, or if such Person is a partnership, the general partner of such Person, to have been duly adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” means, unless
otherwise specified with respect to any Securities pursuant to Section 301, 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 remain closed or, when used with respect to a Place of Payment (other than The City of New York) or any other particular location referred to in this Indenture or in the Securities (other than The City of New York), any day, other than a
Saturday or Sunday, that is not a day on which banking institutions in that Place of Payment or particular location are authorized or required by law, regulation or executive order to remained closed.
“
Capital Stock
” means any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock and, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, such partnership.
“
Clearstream
” means Clearstream Banking, N.A., or its successor.
“
Commission
” means the Securities and Exchange Commission, as from time to time constituted, created under the
Exchange Act or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Securities Act, the Exchange Act or the Trust Indenture Act, as the case may be, then the
body or respective bodies performing such duties on such date.
“
Common Depositary
” shall have the meaning
specified in Section 304.
“
Common Stock
” means the shares of common stock, par value $0.01 per share, of
the Guarantor as they exist on the date of this Indenture or any other shares of Capital Stock of the Guarantor into which the Common Stock shall be reclassified or changed or, in the event of a merger, consolidation or other similar transaction
involving the Guarantor that is otherwise permitted hereunder in which the Guarantor is not the surviving corporation, the common stock, common equity interests, ordinary shares or depositary shares or other certificates representing common equity
interests of such surviving corporation or its direct or indirect parent corporation.
“
Corporate Trust
Office
” or other similar term means the designated office of the Trustee at which, at any particular time, its corporate trust business as it relates to this Indenture shall be administered, which office is, at the date as of which this
Indenture is dated, located at 60 Livingston Avenue, EP-MN-WS3C, Saint Paul, Minnesota 55107-1419, or at any other time at such other address as the Trustee may designate from time to time by notice to the Issuer.
3
“
covenant defeasance
” has the meaning specified in Section 402(3).
“
CUSIP
” means the Committee on Uniform Securities Identification Procedures.
“
Debt
” means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of:
(a) borrowed money or obligations evidenced by bonds, notes, debentures or similar instruments;
(b) indebtedness secured by any Lien on any property or asset owned by such Person, but only to the extent of the lesser of
(a) the amount of indebtedness so secured and (b) the fair market value (determined in good faith by the board of directors of such Person or, in the case of the General Partner or a Subsidiary of the General Partner, by the General
Partner’s Board of Directors or a duly authorized committee thereof) of the property subject to such Lien;
(c)
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;
(d) any lease of property by such Person as lessee which is required to be reflected on
such Person’s balance sheet as a capitalized lease in accordance with GAAP, excluding the principal component of capitalized lease obligations in respect of Approved Bond Transactions; or
(e) to the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of business), Debt of the types referred to above of another Person (it being understood that Debt shall be deemed to be incurred by such Person whenever such Person shall
create, assume, guarantee or otherwise become liable in respect thereof).
“
default
” means any event that is, or
after notice or lapse of time or both would become, an Event of Default.
“
Defaulted Interest
” has the
meaning specified in Section 307.
“
Dollar
” or “
$
” means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
“
DTC
” has the meaning specified in Section 304.
“
Euroclear
” means Morgan Guaranty Trust Company of New York, Brussels office, or its successor as operator of the
Euroclear System.
“
Event of Default
” has the meaning specified in Section 501.
4
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to time, or any successor thereto.
“
Exchange Date
” shall have the meaning specified in Section 304.
“
Foreign Currency
” means any currency, currency unit or composite currency, including, without limitation, the ECU,
issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such governments.
“
GAAP
” means generally accepted accounting principles in the United States, consistently applied, as in effect from
time to time; provided, that if the Guarantor is required by the Commission to adopt (or is permitted to adopt and so adopts) a different accounting framework, including but not limited to the International Financial Reporting Standards,
“GAAP” shall mean such new accounting framework as in effect from time to time, including, without limitation, in each case, those accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.
“
General Partner
” means the corporation named as the “General Partner” in the first paragraph of
this Indenture, and, subject to the provisions of Article 8, shall include its successors and assigns.
“
Global
Security
” means a security evidencing all or a part of a series of Securities issued to and registered in the name of the depositary for such series, or its nominee, in accordance with Section 305, and bearing the legend prescribed in
Section 203.
“
Government Obligations
” means securities which are:
(a) direct obligations of the United States of America, for the payment of which its full faith and credit is pledged; or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
and which, in either
of the above cases, are not callable or redeemable at the option of the issuer thereof and also includes a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of
interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as provided by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
5
“
Guarantee
” and “
Guarantees
” mean the full and
unconditional guarantee provided by the Guarantor in respect of the Securities as made applicable to the Securities in accordance with the provisions of Article 3 and Article 15 hereof and the guarantees endorsed on the certificates evidencing the
Securities, or both, as the context shall require.
“
Guarantee Obligations
” has the meaning specified in
Section 1501.
“
Guarantor
” means the corporation named as the “
Guarantor
” in the first
paragraph of this Indenture, and, subject to the provisions of Article 8, shall include its successors and assigns.
“
Holder
” means the Person in whose name a Security is registered in the Security Register.
“
Indenture
” means this instrument as originally executed and as it may be supplemented or amended from
time to time by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301;
provided,
however,
that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally
executed or as it may be supplemented or amended from time to time by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the, or those, particular series of Securities
for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a
party.
“
Interest
,” when used with respect to an Original Issue Discount Security which by its terms bears
interest only after the Maturity Date, means interest payable after the Maturity Date, and, when used with respect to a Security which provides for the payment of interest or the payment of defeasances pursuant to Section 1010, includes such
interest or Additional Amounts, as applicable.
“
Interest Payment Date
,” when used 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 Indenture until a successor entity shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor
entity.
“
Issuer Request
” and “
Issuer Order
” mean, respectively, a written request or
order signed in the name of the Issuer by, as applicable, the Guarantor by its Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or any Executive Vice President, Senior Vice President or Vice President and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
6
“
legal defeasance
” has the meaning specified in Section 402(2).
“
Lien
” means any mortgage, deed of trust, lien, charge, pledge, security interest, security agreement, or
other encumbrance of any kind.
“
Maturity Date
,” when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
“
Nonrecourse Debt
” means, with respect to a Person, (a) Debt for borrowed money in respect
of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, violation of “special purpose entity” covenants, bankruptcy, insolvency, receivership or other similar events and
other similar exceptions to recourse liability until a claim is made with respect thereto, and then such Debt shall not constitute “Nonrecourse Debt” only to the extent of the amount of such claim) is contractually limited to specific
assets of such Person encumbered by a Lien securing such Debt or (b) if such Person is a Single Asset Entity, any Debt for borrowed money of such Person.
“
Notice of Default
” has the meaning specified in Section 501(3).
“
Officer
” and “
officer
” mean the Chairman of the Board of Directors, the Chief Executive Officer, the
President, the Chief Financial Officer, an Executive Vice President, a Senior Vice President or a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the General Partner (when such term is used with
respect to any action to be taken by, any document to be executed by or any matter relating to the General Partner in its capacity as general partner of the Issuer) or of the Guarantor (when such term is used with respect to any action to be taken
by, document to be executed by or any matter relating to the Guarantor).
“
Officers’ Certificate
”
means a certificate signed by the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, an Executive Vice President, a Senior Vice President, or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the General Partner (when used with respect to the Issuer) or of the Guarantor (when used with respect to the Guarantor), and in each case delivered to the Trustee.
“
Opinion of Counsel
” means a written opinion of counsel, who may be counsel for the Issuer or who may be an employee
of or other counsel for the Issuer and who shall be satisfactory to the Trustee and delivered to the Trustee.
“
Original Issue Discount Security
” means any Security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the Maturity Date thereof pursuant to Section 502.
“
Outstanding
” when used with respect to Securities, means, as of the date of determination, all Securities therefore
authenticated and delivered under this Indenture,
except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
7
(2) Securities, or portions thereof, for whose payment or redemption (including repayment at the
option of the Holder) money in the necessary amount has been theretofore been deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own
Paying Agent) for the Holders of such Securities;
provided, however
, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(3) Securities, except to the extent provided in Section 402, with respect to which the Issuer has effected legal
defeasance and/or covenant defeasance as provided in Article 4; and
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer;
provided however,
that in
determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes,
and for the purpose of making the calculation required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant
to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined pursuant to Section 301 as of the date such Security is originally issued by the Issuer, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i) above) of such Security, and (iii) Securities owned by the Issuer or of any other obligor upon the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded. Securities owned as provided in clause (iii) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any Affiliate of the Issuer or of such other obligor.
“
Paying Agent
” has the meaning specified in Section 104.
8
“
Person
” means an individual, a corporation, a partnership, a limited
liability company, an association, a joint-stock company, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“
Place of Payment
,” when used with respect to the Securities of or within any series, means the place or places where
the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities are payable as specified as contemplated by Sections 301 and 1002.
“
Predecessor Security
” of any particular Security means every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“
Redemption Date
”
means, with respect to any Security or portion thereof to be redeemed in accordance with the provisions of Article 11, the date fixed for such redemption in accordance with the provisions of Article 11.
“
Redemption Price
” has the meaning provided in Section 1106.
“
Registered Security
” shall mean any Security which is registered in the Security Register.
“
Regular Record Date
” for the interest payable on any Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as contemplated by Section 301, whether or not a Business Day.
“
Repayment Date
” means, when used with respect to any Security to be repaid at the option of the Holder, the date
fixed for such repayment by or pursuant to this Indenture.
“
Responsible Officer
” when used with respect to
the Trustee, means any officer in the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such other officer’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder,
as in effect from time to time, and any successor thereto.
“
Security
” has the meaning stated
in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated and delivered under this Indenture;
provided, however,
that, if at any time there is more than one Person acting as Trustee under
this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
9
“
Security Register
” and “
Security Registrar
” have the
respective meanings specified in Section 305.
“
Significant Subsidiary
” means, with respect to the
Guarantor or the Issuer, any Subsidiary which is a “significant subsidiary” (as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated under the Securities Act) of the Issuer or the Guarantor, as the case may be.
“
Single Asset Entity
” means a Person (other than an individual) that (a) only owns a single property; (b) is
engaged only in the business of owning, developing and/or leasing such property; and (c) receives substantially all of its gross revenues from such property. In addition, if the assets of a Person consist solely of (i) equity interests in
one other Single Asset Entity and (ii) cash and other assets of nominal value incidental to such Person’s ownership of the other Single Asset Entity, such Person shall also be deemed to be a Single Asset Entity.
“
Special Record Date
” for the payment of any Defaulted Interest on the Registered Securities of or within any series
means a date fixed by the Issuer pursuant to Section 307.
“
Stated Maturity
,” when used with respect to any
Security or any installment of principal thereof or Interest thereon, means the date specified in such Security or this Indenture as the fixed date on which the principal of such Security or such installment of principal or Interest is due and
payable.
“
Subsidiary
” means for any Person, (1) any corporation, partnership, limited liability
company or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such
corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, or one or more Subsidiaries of such Person, and
(2) any other entity the accounts of which are consolidated with those of such Person pursuant to GAAP.
“
Trust Indenture Act
” or “
TIA
” means the Trust Indenture Act of 1939, as amended, as in effect from
time to time, and any successor thereto.
“
Trustee
” means the Person named as the “Trustee” in the first
paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder;
provided,
however,
that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any particular series shall mean only the Trustee with respect to Securities of that series.
“
United States
” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the
United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“
United States Person
” means, unless otherwise specified with respect to any Securities pursuant to Section 301,
an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United
10
States, an estate the income of which is subject to United States federal income taxation regardless of its source or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust.
“
Yield to Maturity
” means, with respect to any Original Issue Discount Security, the yield to maturity, computed at
the time of issuance of such Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
|
SECTION 102.
|
COMPLIANCE CERTIFICATES AND OPINIONS.
|
Upon any application or request by the Issuer to the
Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture relating to such particular application or request no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1009) shall include:
(1) a statement that each individual signing such certificate or opinion has read
such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement
that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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SECTION 103.
|
FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
|
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
11
Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters,
upon an Opinion of Counsel, or a certificate or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers
stating that the information as to such factual matters is in the possession of the Issuer, and as applicable, the Guarantor, unless such counsel knows that the certificate, opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
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SECTION 104.
|
ACTS OF HOLDERS.
|
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing. 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. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “
Act
” of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Issuer and any agent of the Trustee or the Issuer, if made in the manner provided in this Section 104. The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1406.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient.
The ownership of Registered Securities shall be proved by the Security Register. As to any matter relating to beneficial ownership interests
in any Global Security, the records of the appropriate depositary and of participants in such depositary shall be dispositive for purposes of this Indenture.
If the Issuer shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Issuer may, at its option, in or
12
pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Issuer shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date;
provided,
however,
that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record
date.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any agent to whom Securities may be presented for payment (the “
Paying Agent
”), any Authenticating Agent or the Issuer in reliance thereon, whether or not notation of such action is made upon such
Security.
|
SECTION 105.
|
NOTICES, ETC., TO TRUSTEE AND ISSUER.
|
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office; or
(2) the Issuer by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Issuer addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the Issuer, Attention: Chief Financial Officer; or
(3) either the Trustee
or the Issuer, by the other party shall be sufficient for every purpose hereunder if given by facsimile transmission, receipt confirmed by telephone, followed by an original copy delivered by guaranteed overnight courier; if to the Trustee at
facsimile number (651) 466-7430; and if to the Issuer at facsimile number (404) 465-2201.
13
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SECTION 106.
|
NOTICE TO HOLDERS; WAIVER.
|
Where this Indenture provides for notice of any event to Holders of
Securities by the Issuer or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Holders of Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Securities. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
If by reason of the
suspension of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every purpose hereunder.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security
provides for notice of any event (including any notice of redemption or repurchase) to a Holder (whether by mail or otherwise), during any period when a Global Security has been issued hereunder evidencing all or a part of any series of Securities
such notice shall be sufficiently given if given to the depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the depositary.
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SECTION 107.
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COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.
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This Indenture may be executed in any
number of counterparts, each of which when executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 108.
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SUCCESSORS AND ASSIGNS.
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All covenants and agreements in this Indenture by the Issuer and any
Guarantor shall bind their respective successors and assigns, whether so expressed or not.
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SECTION 109.
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SEVERABILITY CLAUSE.
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In case any provision in this Indenture or in any Security or Guarantee
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.
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SECTION 110.
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BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Securities, and as applicable in
any Guarantees, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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SECTION 111.
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GOVERNING LAW.
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This Indenture and the Securities, and any Guarantees, shall be governed by and
construed in accordance with the law of the State of New York without regard, to the extent permitted by law, to conflicts of laws principles. This Indenture is subject to the provisions of the TIA that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
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SECTION 112.
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LEGAL HOLIDAYS.
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In any case where any Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity Date of any Security or the last date on which a Holder has the right to exchange a Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of
this Indenture or any Security or Guarantee, other than a provision in the Securities of any particular series which specifically states that such provision shall apply in lieu hereof), payment of principal of (and premium, if any) and Interest
(including the Redemption Price upon redemption pursuant to Article 11) or exchange of such security need not be made at such Place of Payment on such date, but (except as otherwise provided with respect to such Security) may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity Date, or on such last day of
exchange, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity Date, as the case may be.
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SECTION 113.
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IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS AND AGENTS OF THE ISSUER, THE GENERAL PARTNER, AND ANY GUARANTOR.
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Except as otherwise expressly provided in Article 15, no recourse under or upon any obligation, covenant or agreement contained in this
Indenture or in any Security or Guarantee, or because of any indebtedness evidenced thereby, shall be had against any past, present or future stockholder, employee, officer or director, as such, of the Issuer, the General Partner, and any Guarantor
or of any successor, either directly or through the Issuer, the General Partner, and any
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Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
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SECTION 114.
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CONFLICT WITH TRUST INDENTURE ACT.
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If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
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SECTION 115.
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COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
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Holders of Securities of any series may
communicate pursuant to TIA Section 312(b) with other Holders of Securities of such series or any other series with respect to their rights under this Indenture or the Securities of such series or all series. The Issuer, the Trustee, the
Registrar and all other persons shall have the protection of TIA Section 312(c).
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SECTION 116.
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PATRIOT ACT.
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The parties hereto acknowledge that in accordance with Section 326 of the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (the “Patriot Act”), the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they shall provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the Patriot Act.
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SECTION 117.
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WAIVER OF JURY TRIAL.
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EACH OF THE ISSUER, THE GENERAL PARTNER, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE 2
SECURITIES FORMS
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SECTION 201.
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FORMS OF SECURITIES.
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The Securities of each series and the related Guarantees, if any, shall
be in the form established in one or more Board Resolutions and, subject to Section 303 hereof, set forth in an
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Officers’ Certificate, or established 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 or designation and such legends or endorsements placed thereon as the Issuer may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Subject to Section 304, the definitive Securities or Guarantees, if any, shall be printed,
lithographed or engraved, or produced by any combination of these methods, on a steel engraved border or steel engraved borders or mechanically reproduced on safety paper or may be produced in any other manner, all as determined by the Officers
executing such Securities or Guarantees, if any, as evidenced by their execution of such Securities or Guarantees.
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SECTION 202.
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FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.
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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.
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U.S. Bank National Association, as Trustee
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Dated:
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By:
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Authorized Signatory
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SECTION 203.
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SECURITIES ISSUABLE IN GLOBAL FORM.
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If Securities of or within a series are issuable in the
form of one or more Global Securities, any such Global Security or Securities may provide that it or they shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof)
from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of any Global
Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner or by such Person or Persons as shall be specified therein or in the Issuer Order to
be delivered to the Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Global Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the applicable 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 endorsement or delivery or redelivery of a Global Security shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
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The provisions of the last sentence of Section 303 shall apply to any Security represented
by a Global Security if such Security was never issued and sold by the Issuer and the Issuer delivers to the Trustee the Global Security together with written instructions (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of
and any premium and interest on any Global Security 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
permanent Global Security, the Holder of such permanent Global Security in registered form.
Any Global Security authenticated and
delivered hereunder shall bear a legend, in addition to any other legend or legends permitted by Section 201, in substantially the following form:
This Security is a Global Security within the meaning set forth in the Indenture hereinafter referred to and is registered in the name of a
depositary or a nominee of a depositary. This Security is exchangeable for Securities registered in the name of a person other than the depositary or its nominee only in the limited circumstances described in the Indenture, and, unless and until it
is exchanged for Securities in definitive form as aforesaid, may not be transferred except as a whole by the depositary to a nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the
depositary or its nominee to a successor depositary or its nominee.
ARTICLE 3
THE SECURITIES
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SECTION 301.
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AMOUNT UNLIMITED; ISSUABLE IN SERIES.
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The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in an Officers’ Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the
Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 1107 or 1305);
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(3) the date or dates, or the method by which such date or dates will be determined, on which the
principal of the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest
will be payable and the Regular Record Date, if any, for the interest payable on any Security on any Interest Payment Date, or the method by which such date shall be determined, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of (and premium, if any) and Interest
(including the Redemption Price upon redemption pursuant to Article 11), 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;
(6) the period
or periods within which, the price or prices at which, the currency or currencies, currency unit or units or composite currency or currencies in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Issuer, if the Issuer is to have the option;
(7) 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;
(8) if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any Securities of
the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent for the
Securities of the series;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the
series that shall be payable upon declaration of acceleration of the Maturity Date thereof pursuant to Section 502, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in which payment of the principal of (and premium, if any) and Interest
(including the Redemption Price upon redemption pursuant to Article 11), if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in
Dollars for purposes of the definition of “Outstanding” in Section 101;
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(12) whether the amount of payments of principal of (and premium, if any) and Interest (including
the Redemption Price upon redemption pursuant to Article 11), if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or
more currencies, currency units, composite currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), 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;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions
to the defined terms, Events of Default or covenants of the Issuer or other provisions of this Indenture with respect to Securities of the series, whether or not such defined terms, Events of Default, covenants or other provisions are consistent
with the defined terms, Events of Default, covenants or other provisions set forth herein;
(16) whether any Securities of the series are
to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent Global Security
may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a Global Security, the identity of the depositary for such series;
(17) the
Person to whom any interest on any 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, and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;
(18) the applicability, if any, of Section 402 to the Securities of the series and any provisions in modification of, in addition to or
in lieu of any of the provisions of Article 4;
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(19) if the Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents or conditions;
(20) 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;
(21) whether and under what circumstances the Issuer will pay Additional Amounts as contemplated by
Section 1010 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);
(22) whether
the obligations of Issuer under the Securities of such series are subject to any Guarantee, and the terms of such Guarantee;
(23) the
terms and conditions, if any, upon which the Securities of the series may be convertible into or exchangeable for Capital Stock or other securities and the terms and conditions upon which such conversion or exchange may be effected, including,
without limitation, the initial conversion or exchange price or rate (or manner of calculation thereof), the portion that is convertible or exchangeable or the method by which any such portion shall be determined, the conversion or exchange period,
provisions as to whether conversion or exchange will be at the option of the holders or at the option of the Issuer, the events requiring an adjustment of the conversion or exchange price, provisions affecting conversion or exchange in the event of
the redemption of such Securities, and any limitations on the transfer or ownership of Capital Stock in connection with the preservation of the Guarantor’s status as a real estate investment trust;
(24) whether such Securities will be secured or unsecured and if secured, the nature of the collateral securing the Securities; and
(25) any other terms of the series.
All Securities of any one series and, as applicable, the Guarantees appertaining to such series, shall be substantially identical, except as
to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.
If any of the form or terms of the Securities of any series are established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the Secretary or an Assistant Secretary of the Guarantor on behalf of the Issuer and delivered to the Trustee at or before the delivery of the Officers’ Certificate setting forth
the terms of the Securities of such series.
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SECTION 302.
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DENOMINATIONS.
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The Securities of each series shall be issuable in such denominations as shall
be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities or any series, the Securities of such series shall be issuable in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
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SECTION 303.
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EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
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The Securities shall be executed on behalf of
the Issuer by its Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents. The related Guarantees, if any, shall be executed on behalf of
the Guarantor by the Guarantor’s Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents. The signature of any of these officers on
the Securities and Guarantees, if any, may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities and Guarantees.
Securities or Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer or,
as applicable, the Guarantor, shall bind the Issuer or the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices before the authentication and delivery of such Securities or Guarantees or did not hold such
offices at the date of such Securities or Guarantees.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Securities of any series, together with any Guarantees, executed by the Issuer to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Issuer Order shall authenticate and deliver such Securities.
If all the Securities of any series are not to be
issued at one time and if the terms of such series as established in or pursuant to a Board Resolution or supplemental indenture shall so permit, such Issuer Order may set forth procedures acceptable to the Trustee for the issuance of such
Securities and determining the terms of particular Securities of such series, such as interest rate or formula, maturity date, date of issuance and date from which interest shall accrue.
In authenticating Securities of any series, and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying upon,
(1) an Opinion of Counsel stating to the effect that:
(A) the form or forms of such Securities and the related Guarantees, if any, have been established in conformity with the
provisions of this Indenture;
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(B) the terms of such Securities and the related Guarantees, if any, have been
established in conformity with the provisions of this Indenture; and
(C) such Securities, together with the related
Guarantees, if any, when completed by appropriate insertions and executed and delivered by the Issuer and the Guarantor to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance
with this Indenture and issued by the 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 and the Guarantor, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, preferences and other similar laws of general applicability relating to or affecting the rights and remedies of creditors to general equitable principles, limitations on
enforceability where such provisions are contrary to public policy and other customary exceptions; and
(2) an Officers’ Certificate
stating that all conditions precedent provided for in this Indenture relating to the issuance of the Securities have been complied with and that, to the best of the knowledge of the signers of such certificate, no Event of Default with respect to
any of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties, obligations or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Officers’ Certificate otherwise required pursuant to Section 301 or an Issuer Order or an Opinion of Counsel or an
Officers’ Certificate otherwise required pursuant to the preceding paragraph at the time of issuance of each Security of such series, but such order, opinion and certificates, with appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first Security of such series.
Each Security and related Guarantee, if any, shall
be dated the date of its authentication.
No Security or Guarantee 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 herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security (including a
Global Security) shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not
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comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Issuer, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
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SECTION 304.
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TEMPORARY SECURITIES.
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Pending the preparation of definitive Securities of any series, the
Issuer may execute, and upon receipt of an Issuer Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, or otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered form, or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities (which shall be exchanged as otherwise provided herein or as otherwise provided in or pursuant to a
Board Resolution or supplemental indenture), if temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. 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.
Unless otherwise provided in or pursuant to a Board Resolution, the following provisions of this Section 304 shall govern the
exchange of temporary Securities other than through the facilities of The Depository Trust Company (“
DTC
”). If any such temporary Security is issued in global form, then such temporary Global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or common depositary (the “
Common Depositary
”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary Global Security (the “
Exchange Date
”), the Issuer shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Issuer. On or after the Exchange Date, such temporary Global Security shall be surrendered by the Common Depositary to the Trustee, as the Issuer’s agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary Global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized
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denominations and of like tenor as the portion of such temporary Global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary Global Security
shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested
by the beneficial owner thereof;
provided, however,
that, unless otherwise specified in such temporary Global Security, upon such presentation by the Common Depositary, such temporary Global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to
the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in such other form as may be established pursuant to Section 301.
Unless otherwise specified in such temporary Global Security, the interest of a beneficial owner of Securities of a series in a temporary
Global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and
the like unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301,
interest payable on a temporary Global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by
Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further interest on or
after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs and of the third paragraph or Section 303 and the
interests of the Persons who are the beneficial owners
25
of the temporary Global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal or interest owing with respect to a beneficial
interest in a temporary Global Security will be made unless and until such interest in such temporary Global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not
paid as herein provided shall be returned to the Trustee prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Issuer.
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SECTION 305.
|
REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
|
The Issuer shall cause to be kept at the
Corporate Trust Office of the Trustee or in any office or agency of the Issuer in a Place of Payment a register for each series of Securities (the registers maintained in such office or in any such office or agency of the Issuer in a Place of
Payment being herein sometimes referred to collectively as the “
Security Register
”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities and of transfers
of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “Security
Registrar” for the purpose of registering Securities and transfers of Securities on such Security Register as herein provided. If the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register at all
reasonable times.
Subject to the provisions of this Section 305, upon surrender for registration of transfer of any Security of any
series at any office or agency of the Issuer in a Place of Payment for that 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 Securities of the
same series, of any authorized denominations and of a like aggregate principal amount, bearing a number not contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any such Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Except as otherwise specified as contemplated by Section 301, any permanent Global Security shall be exchangeable only as provided in
this paragraph. If the depositary for any permanent Global Security is DTC, then, unless the terms of such Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive Securities, a Global Security may be
transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected or approved by the Issuer or to a nominee of such successor to DTC. If at any time
(i) DTC notifies
26
the Issuer that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered as such under the Exchange Act at any time when the depositary is required
to be so registered in order to act as depositary for the applicable Global Security and a successor depositary is not appointed within 90 days after the Issuer receives such notice or learns of such ineligibility, (ii) the Issuer determines
that the Securities of a series shall no longer be represented by a Global Security and executes and delivers to the Trustee an Officers’ Certificate to such effect or (iii) an Event of Default with respect to the Securities of such series
shall have occurred and be continuing and beneficial owners representing a majority in aggregate principal amount of the Outstanding Securities of such series advise DTC to cease acting as depositary for the applicable Global Security, then the
Issuer shall execute, and the Trustee shall authenticate and deliver, definitive Securities of like series, rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or
Securities. If any beneficial owner of an interest in a permanent Global Security is otherwise entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent Global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such
interest may be so exchanged, the Issuer shall execute, and the Trustee shall authenticate and deliver, definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent
Global Security. On or after the earliest date on which such interests may be so exchanged, such permanent Global Security shall be surrendered for exchange by DTC or such other depositary as shall be specified in the Issuer Order with respect
thereto to the Trustee, as the Issuer’s agent for such purpose. If a Registered Security is issued in exchange for any portion of a permanent Global Security after the close of business at the office or agency where such exchange occurs on
(i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date or (ii) any Special Record Date and the opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment as the case may be, only to the Person to whom interest in respect of such portion of such permanent Global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Issuer or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer (including evidence of title and identity) in form satisfactory to the Issuer and the Security Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer
may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 1107 or 1305 or
the second sentence of the third preceding paragraph not involving any transfer.
27
Neither the Issuer nor the Trustee shall be required to (1) issue, register the transfer of
or exchange any Security if such Security may be among those selected for redemption during a period beginning at the opening of business 15 days before the mailing or first publication, as the case may be, of notice of redemption of such Securities
and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (2) register the transfer of or exchange any Security, or portion thereof, 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 (3) issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
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SECTION 306.
|
MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
|
If any mutilated Security or a Security with
a mutilated Guarantee is surrendered to the Trustee or the Issuer, together with, in proper cases, such security or indemnity as may be required by the Issuer or the Trustee to save each of them or any agent of either of them harmless, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding, with
Guarantees, if any, appertaining to the surrendered Security.
If there shall be delivered to the Issuer and to the Trustee
(1) evidence to their satisfaction of the destruction, loss or theft of any Security or Guarantee and (2) 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 or the Trustee that such Security or Guarantee has been acquired by a bona fide purchaser, the Issuer shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Guarantee, a new Security of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously
outstanding, with Guarantees corresponding to the Guarantees, respectively, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Guarantee appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security 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.
Upon the
issuance of any new Security under this Section 306, 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 of any series issued pursuant to this Section 306 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional contractual obligation of
28
the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Guarantees.
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SECTION 307.
|
PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
|
Except as otherwise specified with respect to
a series of Securities in accordance with the provisions of Section 301, interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest in the relevant Security Register;
provided
,
however,
that, except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, each installment of interest on any Security may at the Issuer’s option be paid by (1) mailing a check for such interest payable to or upon the written order of
the Person entitled thereto, to the address of such Person as it appears on the Security Register or (2) wire transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent Global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or Clearstream, as the case may be, with respect to that portion of such permanent Global Security held for its account by Cede & Co. or the Common Depositary or other nominee, as
the case may be, for the purpose of permitting such party to credit the interest received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 301, any interest on
any Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “
Defaulted Interest
”) shall forthwith cease to be payable to the registered Holder thereof on
the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election, in each case as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Issuer shall deposit
with the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
29
Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307 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.
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SECTION 308.
|
PERSONS DEEMED OWNERS.
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Prior to due presentment of a Security for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the Guarantor, the Trustee
nor any agent of the Issuer, the Guarantor or the Trustee shall be affected by notice to the contrary. All such payments so made to any such Person, or upon such Person’s order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for money payable upon any such Security.
No holder of any beneficial interest in any
Global Security held on its behalf by a depositary shall have any rights under this Indenture with respect to such Global Security and such depositary (or its nominee) shall be treated by the Issuer, the Trustee, and any agent of the Issuer or the
Trustee as the owner of such Global Security for all purposes whatsoever. None of the Issuer, Guarantor, 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.
30
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent
the Issuer, the Trustee, or any agent of the Issuer or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary (or its nominee), as a Holder, with respect to such Global Security or
impair, as between such depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security.
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SECTION 309.
|
CANCELLATION.
|
All Securities surrendered for payment, redemption, repayment at the option of
the Holder, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Securities surrendered directly to
the Trustee for any such purpose shall be promptly cancelled by it. The Issuer may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Issuer shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture. Cancelled Securities held
by the Trustee shall be returned to the Issuer.
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SECTION 310.
|
COMPUTATION OF INTEREST.
|
Except as otherwise specified as contemplated by Section 301
with respect to Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
|
SECTION 311.
|
PAYING AGENT TO HOLD MONEY IN TRUST.
|
The Issuer shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of Securities of any series, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on such the Securities of
such series, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of
the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of Securities of any Series all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect
to the Issuer, the Trustee shall serve as Paying Agent for the Securities.
31
ARTICLE 4
SATISFACTION AND DISCHARGE; DEFEASANCE
|
SECTION 401.
|
SATISFACTION AND DISCHARGE.
|
This Indenture shall upon an Issuer Request cease to be of further
effect with respect to any series of Securities specified in such Issuer Request (except as to (i) rights hereunder of Holders of the Securities of such series to receive all amounts owing upon the Securities of such series and the other
rights, duties and obligations of Holders of the Securities of such series, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee, (ii) the rights, obligations and immunities of the Trustee hereunder and
(iii) as provided below in this Section 401), and the Trustee, upon demand of and at the expense of the Issuer, shall execute instruments in form and substance satisfactory to the Trustee and the Issuer acknowledging satisfaction and
discharge of this Indenture when:
(1) either
(i) all Securities of such series theretofore authenticated and delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, and (B) Securities 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 406) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Maturity Date within one year, or
(C) are to be called for redemption on a Redemption Date within one year under irrevocable 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 Issuer, in the case
of (A), (B) or (C) above, has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust for such purpose, money in U.S. dollars in an amount sufficient to pay and discharge the entire indebtedness on the
Securities of such series not theretofore delivered to the Trustee for cancellation, including the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11)
32
on such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity Date or such Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to this
Section 401, then the provisions of Sections 305, 306, 309, 607, 608(5), 1002, 1003 and 1012 and this Article 4 (other than Section 402) and, if the Securities of such series will be paid on a Redemption Date, Article 11 shall survive and
remain in full force and effect. At such time as satisfaction and discharge of this Indenture shall be effective with respect to the Securities of a particular series, the Guarantor will be released from its Guarantees of the Securities of such
series.
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SECTION 402.
|
DEFEASANCE AND COVENANT DEFEASANCE.
|
(1) The Issuer may at its option by Board Resolution, at
any time, elect to have Section 402(2) or Section 402(3) be applied to the Outstanding Securities of any particular series specified in such Board Resolution 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), the Issuer shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth in this Section 402(2) are satisfied (hereinafter, “
legal defeasance
”). For this purpose, such legal
defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series, which shall thereafter be deemed to be “Outstanding” only for the purposes of
Sections 403 and 404 and the other provisions of this Indenture referred to below in this paragraph, and to have satisfied all of its other obligations under the Securities of such series and this Indenture insofar as the Securities of such series
are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions hereof, which shall survive such legal defeasance and remain in full force and effect with
respect to the Securities of such series: (i) the rights of Holders of the Securities of such series to receive, solely from the trust fund described in Section 402(4)(i), payments in respect of the principal of (and premium, if any) and
Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of such series when such payments are due, (ii) the provisions of Sections 304, 305, 306, 606, 608(5), 1002, 1003 and 1012, and this Article 4
(other than Section 401), and if the Securities of such series will be paid on a Redemption Date, Article 11, and (iii) the rights, obligations and immunities of the Trustee hereunder. The Issuer may exercise its option under this
Section 402(2) notwithstanding the prior exercise of its option under Section 402(3). Upon the effectiveness of any legal defeasance (but not covenant defeasance) with respect to the Securities of a particular series, the Guarantor will be
released from its Guarantees of the Securities of such series.
33
(3) Upon the Issuer’s exercise of the above option applicable to this Section 402(3)
with respect to the Securities of any particular series, the Issuer and the Guarantor shall be released from their respective obligations under Section 1004 with respect to such Securities to keep in full force and effect its rights (charter
and statutory) and franchises (but, for the avoidance of doubt, shall not be released from their respective obligations with respect to such Securities to do or cause to be done all things necessary to preserve and keep in full force and effect
their respective existences (except as permitted under Article 8)) and Sections 1005 through 1007, inclusive on and after the date the conditions set forth in Section 402(4) are satisfied (hereinafter, “
covenant defeasance
”),
and the Securities of such series 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 the Outstanding Securities of a particular series, the Issuer and the Guarantor may
omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or by reason of
reference in any such Section or 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(3) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture, the Securities of such series and the related Guarantees shall be unaffected thereby.
(4) The following shall be the conditions to the effectiveness of legal defeasance pursuant to Section 402(2), and covenant defeasance
pursuant to Section 402(3), to any Outstanding Securities of a series:
(i) The Issuer shall irrevocably have
deposited or caused to be deposited with the Trustee 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, (A) an
amount in U.S. dollars, or (B) Government Obligations 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 (including the Redemption Price upon redemption pursuant to Article 11) on such Securities, money in an amount, or (C) a combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), 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 to pay and discharge, the principal of (and premium, if any) and Interest on such Securities on the Stated
Maturity of such principal or installment of principal of (and premium, if any) and Interest and the Redemption Price upon redemption pursuant to Article 11 on the applicable Redemption Date, as the case may be, in accordance with the terms of this
Indenture and such Securities.
34
(ii) In the case of legal defeasance pursuant to Section 402(2) with respect
to Securities of a particular series, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (x) the Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of such
Securities will not recognize income, gain or loss for federal income tax purposes as a result of such legal 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 legal defeasance had not occurred; or, in the case of covenant defeasance pursuant to Section 402(3), the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the
Holders of such Securities 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.
(iii) Such legal 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 is a party or by which either of them is bound.
(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have
occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 501(5) or 501(6) shall have occurred and be continuing at any
time during the period ending on and including the 91st day after the date of such deposit.
(v) The Issuer shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 402(4)(i)
above are sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities provided such Securities are redeemed on a particular Redemption Date, the
Issuer shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
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(vii) Such legal defeasance or covenant defeasance will not cause the Trustee to
have a conflicting interest for the purposes of the Trust Indenture Act with respect any of the Issuer’s or the Guarantor’s securities.
(viii) Such legal defeasance or covenant defeasance will not cause any securities listed on any registered national securities
exchange under the Exchange Act to be delisted.
(ix) Such legal defeasance or covenant defeasance will be effected in
compliance with any additional terms, conditions or limitations which may be imposed on the Issuer or the Guarantor in connection therewith.
(5) 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 of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) 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 Securities.
(6) Anything in this Section 402 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon an Issuer Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 402(2)(i) 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 legal defeasance or
covenant defeasance, as applicable, in accordance with this Section 402.
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SECTION 403.
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APPLICATION OF TRUST MONEY.
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Subject to the provisions of Section 405, all money and
Government Obligations (and proceeds therefrom) deposited with the Trustee pursuant to Section 401 or 402 in respect of Outstanding Securities of any series shall be held in trust and applied by it, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Issuer or the Guarantor or any of their respective Affiliates or Subsidiaries) as the Trustee may determine, to the Persons entitled thereto,
of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) 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.
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SECTION 404.
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APPLICATION OF MONIES HELD.
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Subject to the provisions of Section 405, the Trustee or a
Paying Agent shall hold in trust, for the benefit of the Holders of Securities of a particular series, all money and Government Obligations (and proceeds therefrom) deposited with it pursuant to Sections 401 and 402 shall apply the deposited money
and Government Obligations (and proceeds therefrom) in accordance with this Indenture and such Securities to the payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11)
on such Securities.
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SECTION 405.
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RETURN OF UNCLAIMED MONIES.
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Subject to the restrictions of applicable law, the Trustee and
each Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) that remains unclaimed for two
years after a right to such money has matured;
provided, however,
that the Trustee or such Paying Agent, before being required to make any such payment may, at the expense of the Issuer, cause to be mailed to each Holder entitled to such
money, notice that such money remains unclaimed and that after a date specified therein, which shall be at least 30 calendar days from the date of such mailing, any unclaimed balance of such money then remaining will be repaid to the Issuer. After
payment to the Issuer, Holders entitled to that money must look to the Issuer or Guarantor for payment as general creditors unless an applicable abandoned property law designates another person, and the Trustee and each Paying Agent shall be
relieved of all liability with respect to such money.
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SECTION 406.
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REINSTATEMENT.
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If the Trustee or any Paying Agent is unable to apply any moneys or Government
Obligations deposited pursuant to Section 401(1)(i) or 402(4)(i) to pay any principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of a particular series by
reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and such Securities and the
related Guarantor’s obligations under this Indenture and the Guarantees shall be revived and reinstated as though no such deposit had occurred, until such time as the Trustee or Paying Agent is permitted to apply all such moneys and Government
Obligations to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities as contemplated by Section 401 or 402, as the case may be, and Section 403;
provided, however,
that if the Issuer or the Guarantor makes any payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities following the
reinstatement of its obligations as aforesaid, the Issuer or the Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Securities to receive such payment from the funds held by the Trustee or Paying Agent in trust.
ARTICLE 5
REMEDIES
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SECTION 501.
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EVENTS OF DEFAULT.
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In case any one or more of the following (each, an “
Event of
Default
”) (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) shall have occurred and be continuing with respect to the Securities of any particular series:
(1)
default in the payment of any Interest on the Securities of such series when such Interest becomes due and payable that continues for a period of 30 days;
37
(2) default in the payment of any principal (and premium, if any) (including the Redemption Price
upon redemption pursuant to Article 11) with respect to the Securities of such series, when due and payable, on the Maturity Date, upon acceleration, upon redemption or otherwise;
(3) default in the observance or performance of any other covenant or agreement of the Issuer or the Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Securities other than that series)
and continuance of such default for a period of 60 days after the Issuer receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% in aggregate principal amount of
the Securities of such series then Outstanding and stating that such notice is a “
Notice of Default
” hereunder;
(4)
default under any bond, debenture, note, mortgage, indenture or instrument (other than Nonrecourse Debt) under which there may be issued or by which there may be secured or evidenced any Debt of the Guarantor, of the Issuer or of any or their
respective Significant Subsidiaries, having an aggregate principal amount outstanding of at least $50,000,000, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within the greater of (i) the period specified in such instrument and (ii) 60 days after
written notice to the Issuer by the Trustee or Holders of at least 25% of the principal amount of the Securities of such series Outstanding;
(5) the Guarantor, the Issuer, or any of their respective Significant Subsidiaries pursuant to or under or within meaning of any Bankruptcy
Law:
(i) commences a voluntary case; or
(ii) consents to the entry of an order for relief against it in an involuntary case; or
(iii) consents to the appointment of any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy
Law of it or for all or substantially of its property; or
(iv) makes a general assignment for the benefit of creditors; or
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Guarantor, the Issuer or any of their respective Significant Subsidiaries in an involuntary case;
or
38
(ii) appoints a trustee, receiver, liquidator, custodian or other similar
official of the Guarantor, the Issuer or any of their respective Significant Subsidiaries or for all or substantially all of its property; or
(iii) orders the liquidation of the Guarantor, the Issuer or any of their respective Significant Subsidiaries;
and, in each case in this clause (6), the order or decree remains unstayed and in effect for 90 calendar days;
then, and in each and every such case (other than an Event of Default specified in Section 501(5) and Section 501(6)), unless the principal of all
of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities of such series then Outstanding, by notice in writing to the Issuer and the
Guarantor (and to the Trustee if given by Holders of Securities), specifying the respective Event of Default and that such notice is a “notice of acceleration,” may declare the principal amount of and premium, if any, as applicable, and
Interest accrued and unpaid on, all the Securities of such series to be immediately due and payable, and upon any such declaration the same shall be immediately due and payable.
If an Event of Default specified in Section 501(5) or Section 501(6) occurs and is continuing, then the principal of (and premium,
if any) and Interest accrued and unpaid (including the Redemption Price upon redemption pursuant to Article 11) on all the Securities of such series shall be immediately due and payable without any declaration or other action on the part of the
Trustee or any Holder of Securities of such series.
If, at any time after the principal of (and premium, if any) and Interest (including
the Redemption Price upon redemption pursuant to Article 11) on the Securities of a particular series shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or
entered as hereinafter provided, Holders of not less than a majority in aggregate principal amount of the Securities of such series then Outstanding on behalf of the Holders of all of the Securities of such series then Outstanding, by written notice
to the Issuer and to the Trustee, may waive all defaults or Events of Default and rescind and annul such declaration and its consequences, subject in all respects to Section 507, if: (a) all Events of Default, other than the nonpayment of
the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) that have become due solely because of such acceleration, have been cured or waived; (b) the Issuer or the Guarantor
shall have deposited with the Trustee a sum sufficient to pay all overdue Interest, including Interest on overdue principal and (to the extent that payment of such Interest is lawful) overdue installments of Interest, and all principal which has
become due otherwise than by such acceleration; and (c) the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances pursuant to Section 606. No such waiver or
rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture with respect to the Securities of a particular series and
such proceedings shall have been discontinued
39
or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Issuer, the
Guarantor, the Holders of the Securities of such series, and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Guarantor, the Holders of the Securities
of such series, and the Trustee shall continue as though no such proceeding had been taken.
Anything herein to the contrary
notwithstanding, Interest on any overdue installments of principal of and premium, if any, as applicable, and (to the extent that payment of such Interest is lawful) Interest on the Securities of a particular series shall accrue and be payable at
the same rate as Interest is otherwise payable on such Securities.
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SECTION 502.
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PAYMENTS OF SECURITIES ON DEFAULT; SUIT THEREFOR.
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The Issuer covenants that in the case of an
Event of Default with respect to Securities of a particular series pursuant to Section 501(1) or 501(2), upon demand of the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders of the Securities of such series,
(i) the whole amount that then shall be due and payable on all such Securities for principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), as the case may be, with Interest upon
overdue principal and (to the extent that payment of such Interest is enforceable under applicable law) the overdue installments of accrued and unpaid Interest at the rate borne by such Securities from the required payment date and, (ii) in
addition thereto, any amounts due the Trustee under Section 606. Until such demand by the Trustee, the Issuer may pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on
the Securities to the registered Holders, whether or not such payments in respect of the Securities are overdue.
In case the Issuer shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such final judgment or final decree against the Issuer, the Guarantor or any other obligor on the Securities of such series and collect in
the manner provided by law out of the property of the Issuer, the Guarantor or any other obligor on the Securities of such series wherever situated the monies adjudged or decreed to be payable.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Guarantor, the Issuer or any other obligor upon the Securities of any particular series or the property of the Guarantor, the Issuer or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer or the Guarantor for the
payment of overdue principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities shall be entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal of (and premium, if any) and Interest (including Interest on overdue principal and (to the extent that
40
payment of such Interest is lawful) overdue Interest) and including the Redemption Price upon redemption pursuant to Article 11, owing and unpaid in respect of such Securities and to file such
other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders of such Securities allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of such Securities 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 such Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security of any series any plan
of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the related Guarantees or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of Securities
of such series in any such proceeding;
provided
,
however
,
that the Trustee may, on behalf of the Holders of Securities, vote for the election of a trustee in bankruptcy or similar official and may be a member of the
creditors’ committee.
All rights of action and of asserting claims under this Indenture, or under the Securities of any series or
the related Guarantees, may be enforced by the Trustee without the possession of any of the Securities of such series, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities of such series.
In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities, and it shall not be necessary to make any Holders of the
Securities parties to any such proceedings.
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SECTION 503.
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APPLICATION OF MONIES COLLECTED BY TRUSTEE.
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Any monies collected by the Trustee pursuant to
this Article 5 shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Securities, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
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FIRST:
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To the payment of costs and expenses of collection, including all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses and disbursements of the Trustee, its agents and counsel all other amounts
due the Trustee and any predecessor Trustee under Section 606;
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41
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SECOND:
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To the payment of the amounts then due and unpaid upon the Securities for principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), 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 the Securities for principal (and premium, if any) and Interest (including the Redemption
Price upon redemption pursuant to Article 11), respectively; and
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THIRD:
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To the payment of the remainder, if any, to the Issuer.
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SECTION 504.
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PROCEEDINGS BY HOLDERS OF SECURITIES.
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No Holder of any Security of any series shall have any
right by virtue of or by reference to any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator,
custodian or other similar official, or for any other remedy hereunder, except in the case of a default in the payment of principal (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such
Securities, unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series, as hereinbefore provided, (b) the Holders of
at least 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs, liabilities or expenses to be incurred therein or thereby, (c) the Trustee for 60 calendar days after the receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (d) no direction inconsistent with such written request shall have been given to the Trustee by Holders of a majority in aggregate principal amount of Securities of such series
then Outstanding in accordance with Section 507; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of
Securities shall have any right in any manner whatever by virtue of or by reference to any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities (except as otherwise provided herein). For the
protection and enforcement of this Section 504, each and every Holder of Securities and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Security of any series, the right of any Holder of any Security
of any series to receive payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Security, on or after the respective due dates expressed in such Security or in
the event of redemption, or to institute suit for the enforcement of any such payment on or after such respective dates against the Issuer or the Guarantor, shall not be impaired or affected without the consent of such Holder.
42
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SECTION 505.
|
PROCEEDINGS BY TRUSTEE.
|
If an Event of Default occurs and is continuing with respect to the
Securities of any particular series, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of such Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 506.
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REMEDIES CUMULATIVE AND CONTINUING.
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To the extent permitted by law, all powers and remedies
given by this Article 5 to the Trustee or to the Holders of Securities of any particular series shall be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any Securities of any particular
series to exercise any right or power accruing upon any default or Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or any acquiescence therein,
and, subject to the provisions of Section 504, every power and remedy given by this Article 5 or by law to the Trustee or to the Holders of such Securities may be exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of such Securities.
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SECTION 507.
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DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF HOLDERS OF SECURITIES.
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The
Holders of not less than a majority in aggregate principal amount of the Securities of a particular series at the time Outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series;
provided
that (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and (c) the Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders of such
Securities not joining therein, it being understood that (subject to Section 602) the Trustee shall have no duty to ascertain whether or not such actions or forbearance are unduly prejudicial to such Holders.
The Holders of a majority in aggregate principal amount of the Securities of any particular series at the time Outstanding may, on
behalf of the Holders of all of the Securities of such series, waive any past default or Event of Default with respect to Securities of such series hereunder and its consequences
except
(i) a default in the payment of the principal of
(and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of such series, (ii) a default in the payment of the Redemption Price or any Interest on the Securities of such series
called for redemption on a Redemption Date pursuant to Article 11, or (iii) a default in respect of a covenant or provisions hereof, which under Article 9 cannot be modified or amended without the consent of the Holders of all Securities of
such series then Outstanding or each Security of such series affected thereby.
43
Upon any such waiver, such default with respect to such Securities shall cease to exist, and any
Event of Default with respect to such Securities arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default with respect to such
Securities or impair any right consequent thereon.
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SECTION 508.
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UNDERTAKING TO PAY COSTS.
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All parties to this Indenture agree, and each Holder of a Security
of any particular series by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees
and expenses, 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;
provided that
the provisions of this Section 508 (to the extent permitted by
law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder of Securities of such series, or group of Holders of such series, holding in the aggregate more than ten percent in principal amount of the Securities
of such series at the time Outstanding, or to any suit instituted by any Holder of Securities of such series for the enforcement of the payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption
pursuant to Article 11) on such Security on or after the due date expressed in such Security.
ARTICLE 6
THE TRUSTEE
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SECTION 601.
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NOTICE OF DEFAULTS.
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Within 90 calendar days after the occurrence of any default hereunder, the
Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known to a Responsible Officer of 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 (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on any Security of a particular series, the Trustee
shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of the Securities of such series; and
provided
further that
in the case of any default or breach with respect to Securities of any series of the character specified in Section 501(6), no such notice to Holders of Securities of such series shall be given until at least 60 days after the
occurrence thereof.
44
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SECTION 602.
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CERTAIN RIGHTS OF TRUSTEE.
|
Subject to the provisions of TIA Section 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers’
Certificate, certificate, statement, instrument, Opinion of Counsel, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by
an Issuer Request or Issuer Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an
Officers’ Certificate;
(4) before the Trustee acts or refrains from acting, the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Outstanding Securities pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series;
provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable expenses of every such examination shall be paid by the Holders or, if paid by the Trustee, shall be repaid by the Holders upon demand. The Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and
the Guarantor relevant to the facts or matters that are the subject of its inquiry, personally or by agent or attorney;
(7) the Trustee
may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
45
(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith
and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(9) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(10) the
permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and the Trustee shall not be answerable for other than its negligence or willful misconduct; and
(11) except for (i) a default under Sections 501(1) or 501(2) hereof, or (ii) any other event of which a Responsible Officer of the
Trustee has “actual knowledge” and which event constitutes or, with the giving of notice or the passage of time or both, would constitute an Event of Default under this Indenture with respect to Securities of any particular series, the
Trustee shall not be deemed to have notice of any default or Event of Default unless specifically notified in writing of such event by the Issuer or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then
Outstanding; as used herein, the term “
actual knowledge
” means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto.
The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Except during
the continuance of an Event of Default, the Trustee undertakes to perform only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. Other than
with respect to Section 1001, the Trustee will have no duty to monitor, inquire as to or ascertain compliance with the covenants set forth in Article 10 or in indentures supplemental hereto in accordance with Article 9.
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SECTION 603.
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NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
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The recitals contained herein and in
the Securities and any related Guarantees, except the Trustee’s certificate of authentication, shall be taken as the statements of the Issuer, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or any related Guarantees, except that the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.
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SECTION 604.
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MAY HOLD SECURITIES AND COMMON STOCK.
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The Trustee, any Paying Agent, Security Registrar,
Authenticating Agent or any other agent of the Issuer, in its individual or any other capacity, may become the owner or pledgee of Securities or Common Stock and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Issuer and the
Guarantor with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other agent.
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SECTION 605.
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MONEY HELD IN TRUST.
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Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer.
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SECTION 606.
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COMPENSATION AND REIMBURSEMENT.
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The Issuer agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and
(3) to indemnify
each of the Trustee and any predecessor Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending itself against or investigating any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Sections 501(5) or 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Issuer under this Section, the Trustee shall have a Lien prior to the
Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on
any Securities. The provisions of this Section shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee.
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SECTION 607.
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CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS.
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There shall at all times be a
Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law
or the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act. Neither the Issuer, the Guarantor nor any Person directly or indirectly controlling, controlled by, or under
common control with the Issuer or the Guarantor shall serve as Trustee.
If and when the Trustee shall be or become a creditor of the
Issuer or the Guarantor or any other obligor under the Securities, the Trustee shall be subject to the provisions of the TIA regarding the collection of claims against the Issuer, the Guarantor or any such other obligor, as the case may be.
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SECTION 608.
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RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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(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 in accordance with the applicable requirements of Section 609.
(2) The Trustee may resign at any time by giving written notice thereof to the Issuer. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(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 to the Issuer.
(4) If at any time:
(i) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the
Issuer or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
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(ii) the Trustee shall cease to be eligible under Section 607 and shall fail
to resign after written request therefor by the Issuer or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(iii) 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, (A) the Issuer by or pursuant to a Board Resolution may remove the Trustee and appoint a successor Trustee, or
(B) subject to TIA Section 315(e), any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(5) 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, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Issuer or the Holders of securities of such series and accepted appointment in the manner hereinafter provided, any Holder of Securities of such series who has been a bona fide Holder of Securities 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.
(6) Subject to Section 1002, 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 by mailing or causing to be mailed such notice to the Holders of Securities of such series as they appear on the Security Register. Each notice shall include the name of the
successor Trustee with respect to such series and the address of its Corporate Trust Office.
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SECTION 609.
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ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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(1) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
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successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or the
successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 606.
(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Issuer, the Guarantor, the retiring Trustee and each successor Trustee shall execute and deliver an indenture supplemental hereto, pursuant to Article 9 hereof, wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to Securities of that or those series to
which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring as to all Outstanding 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 Securities of that or those series to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates.
(3) Upon request of any such successor Trustee, the Issuer 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 609, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 610.
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MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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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
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the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities 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. In case any Securities shall not have
been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities, in either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
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SECTION 611.
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APPOINTMENT OF AUTHENTICATING AGENT.
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At any time when any of the Securities remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof, and such Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Issuer. 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 shall at all times be a bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any state or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authorities. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent,
provided
such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Issuer. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the 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 shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 106 by mailing or causing to be mailed
such notice to the Holders of Securities of such series as they appear on the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following form:
“This is one of the Securities designated therein referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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as Authenticating Agent
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By:
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Authorized Signatory
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Dated:
”
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SECTION 612.
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CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
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(1) With respect to the Securities, except
during the continuance of an Event of Default with respect to any particular series of Securities:
(i) the Trustee
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and imposed by the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
52
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but shall not be
under any duty to verify the contents or accuracy thereof.
(2) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own
affairs.
(3) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to
limit the effect of Subsection (1) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable to Holders of Securities of any particular series with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(iv) no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; and
(v) except as explicitly specified otherwise herein, the Issuer will be responsible for making all calculations required under
this Indenture and the Securities. The Issuer will make all these calculations in good faith and, absent manifest error, the Issuer’s calculations will be final and binding on Holders of the Securities. The Issuer will provide a schedule of its
calculations to the
53
Trustee, and the Trustee is entitled to rely upon the accuracy of the Issuer’s calculations without independent verification. The Trustee will forward the Issuer’s calculations to any
Holder of the Securities upon request.
(4) Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 612.
ARTICLE 7
HOLDERS’ LISTS
AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701.
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DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
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Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any information as
to the names and addresses of the Holders of Securities in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
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SECTION 702.
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REPORTS BY TRUSTEE.
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Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such May 15 if required by TIA
Section 313(a). A copy of each such report at the time of its mailing to Holders of Securities of any series shall be filed with the Commission and each national securities exchange on which the Securities of such series are listed. The Issuer
shall promptly notify the Trustee when Securities of any series are listed on any national securities exchange.
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SECTION 703.
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REPORTS BY ISSUER.
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So long as any Securities are Outstanding, the General Partner will:
(1) file with the Trustee, within 15 days after the General Partner is required to file the same with the Commission, copies of the annual
reports and information, documents and other reports which the General Partner may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or if the General Partner is not required to file
information, documents or reports pursuant to those Sections, then the General Partner will file with the Trustee, such of the supplementary and periodic information, documents and reports which Section 13 of the Exchange Act may require with
respect to a security listed and registered on a national securities exchange;
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(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 General Partner with the conditions and covenants of the Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Notes, within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries of any information, documents and reports required to be filed by the General Partner pursuant to paragraph (1) or (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
Reports, information and documents filed with the Commission via the
Commission’s Electronic Data Gathering, Analysis and Retrieval system (“
EDGAR
”) will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this covenant; provided, however, that the
Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed via EDGAR. If, notwithstanding the foregoing, the Commission will not accept the required filings through EDGAR for any
reason, the Issuer may make the reports referred to in clauses (1) and (2) above available on its website within fifteen (15) days after the Issuer would be required to file such reports with the Commission, and such reports will be
deemed to be delivered to the Trustee as of the time they are made available. Notwithstanding the foregoing, if permitted by the Commission, the Issuer may satisfy its obligation to furnish the reports described above by furnishing such reports
filed by the Guarantor.
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SECTION 704.
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ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
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The Issuer will furnish or cause to
be furnished to the Trustee:
(1) semiannually, not later than 15 days after the Regular Record Date for interest for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of such Regular Record Date or, if there is no Regular Record Date for interest for such series of
Securities, semiannually, upon such dates as are set forth in or established pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer 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.
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ARTICLE 8
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
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SECTION 801.
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ISSUER MAY CONSOLIDATE ON CERTAIN TERMS.
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(1) The Issuer shall not merge into or consolidate
with any other Person or Persons or sell, lease, transfer, convey or otherwise dispose of its properties and assets substantially as an entirety to any other Person or Persons, unless:
(i) the successor Person is a corporation organized under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the successor Person expressly assumes, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the Issuer’s obligation for the due and punctual payment of the principal of (and premium, if any) and Interest on the Securities and the performance and observance of the covenants and conditions
of the Securities and this Indenture on the part of the Issuer to be performed or observed;
(iii) immediately after giving
effect to such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and
(iv) the Issuer or the successor Person, as the case may be, shall have delivered to the Trustee an Officer’s Certificate
and Opinion of Counsel stating that such consolidation, merger, sale, conveyance, transfer, lease or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this
Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
(2) The restrictions
in Section 801(1) hereof shall not be applicable to the merger, amalgamation, arrangement or consolidation of the Issuer with a Subsidiary of the General Partner if the General Partner’s Board of Directors determines in good faith that the
purpose of such transaction is principally to change the state of incorporation of the Issuer or convert the form of organization of the Issuer to another form.
(3) No consolidation, merger, sale, conveyance, transfer or lease shall be permitted by this Section 801 unless prior thereto the Issuer
shall have delivered to the Trustee an Officers’ Certificate of the Issuer and an Opinion of Counsel, each stating that the Issuer’s obligations hereunder and under the Securities shall remain in full force and effect thereafter.
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SECTION 802.
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ISSUER SUCCESSOR TO BE SUBSTITUTED.
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Upon any consolidation of the Issuer with, or merger of
the Issuer into, any other Person or any sale, transfer, lease or other conveyance of its properties and assets substantially as an entirety in accordance with Section 801(1), the successor Person formed by such consolidation or into which the
Issuer is merged or to which such sale, transfer, lease or other conveyance is made
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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 of all obligations to pay principal and Interest on the Securities and all other obligations and covenants under the Indenture and the Securities.
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SECTION 803.
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GUARANTOR MAY CONSOLIDATE ON CERTAIN TERMS.
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(1) The Guarantor shall not merge into or
consolidate with any other Person or Persons or sell, lease, transfer, convey or otherwise dispose of its properties and assets substantially as an entirety to any other Person or Persons, unless:
(i) the successor Person is a corporation organized under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the successor Person expressly assumes, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the Guarantor’s obligation for the due and punctual payment of the principal of (and premium, if any) and Interest on the Securities and the performance and observance of the covenants and
conditions of the Securities and this Indenture on the part of the Guarantor to be performed or observed;
(iii)
immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and
(iv) the Guarantor has delivered to the Trustee a Guarantor Officer’s Certificate and Opinion of Counsel stating that such
consolidation, merger, sale, conveyance, transfer, lease or other disposition 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.
(2) The restrictions in Section 803(1) hereof shall not be
applicable to the merger, amalgamation, arrangement or consolidation of the Guarantor with a Subsidiary of the General Partner if the Guarantor’s Board of Directors determines in good faith that the purpose of such transaction is principally to
change the state of incorporation of the Guarantor or convert the form of organization of the Guarantor to another form.
(3) No
consolidation, merger, sale, conveyance, transfer or lease shall be permitted by this Section 803 unless prior thereto the Guarantor shall have delivered to the Trustee an Officers’ Certificate of the Guarantor and an Opinion of Counsel,
each stating that the Guarantor’s obligations hereunder and under the Guarantees endorsed on the Securities shall remain in full force and effect thereafter.
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SECTION 804.
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GUARANTOR SUCCESSOR TO BE SUBSTITUTED.
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Upon any consolidation of the Guarantor with, or merger
of the Guarantor into, any other Person or any sale, transfer, lease or other conveyance of its properties and assets substantially as an entirety in accordance with Section 803, the successor Person formed by such consolidation or into which
the Guarantor is merged or to which such sale, transfer, lease or other conveyance 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, the predecessor Person shall be released of all obligations to pay principal and interest on any Securities and all other obligations and
covenants under the Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
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SECTION 901.
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SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF SECURITIES.
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The Issuer and the
Guarantor, when authorized by resolutions of their Boards of Directors, and the Trustee may from time to time, and at any time, enter into an indenture or indentures supplemental hereto without the consent of any Holder of the Securities for any of
the following purposes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act;
(3) to evidence and provide for the acceptance of appointment by a successor trustee;
(4) to conform the terms of this Indenture, the Securities and/or the Guarantee to any provision or other description of the Securities or
Guarantee, as the case may be, contained in the applicable prospectus and any applicable prospectus supplement;
(5) to provide for the
assumption by a successor corporation, partnership, trust or limited liability company of the Issuer’s or the Guarantor’s obligations under this Indenture and the Securities, in each case in compliance with the provisions thereof;
(6) to establish the form or terms of Securities of any series as permitted by Section 201 or 301;
(7) to comply with the rules of any applicable securities depository;
(8) to make any change that would provide any additional rights or benefits to the Holders of Securities of all or any series (including to
secure the Securities of such series, add Guarantees with respect thereto, transfer any property to or with the Trustee, add to the
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Issuer’s covenants for the benefit of the Holders of Securities of such series, add any additional Events of Default, or surrender any right or power conferred upon the Issuer or the
Guarantor) or that does not adversely affect the legal rights hereunder of any Holder of the Securities of any series in any respect; or
(9) supplement any provision of this Indenture as shall be necessary to permit or facilitate the defeasance or discharge of the Securities of
all or any series in accordance with this Indenture; provided that such action shall not adversely affect the interests of any Holder of the Securities of any series in any material respect.
Upon the written request of the Issuer, accompanied by Board Resolutions authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Issuer and the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 901 may be executed by the Issuer, the Guarantor and the
Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 902.
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SECTION 902.
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SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS OF SECURITIES.
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With the consent (evidenced as
provided in Article 7) of the Holders of not less than a majority in aggregate principal amount of all Outstanding Securities of each series affected by such supplemental indenture, the Issuer and the Guarantor, when authorized by the resolutions of
their Boards of Directors, and the Trustee may, from time to time and at any time, 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 any supplemental indenture or modifying in any manner the rights of the Holders of the Securities;
provided
that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected by such supplemental indenture:
(1) reduce the percentage of Outstanding Securities necessary to modify or amend this Indenture,
to waive compliance with certain provisions of this Indenture or certain defaults and their consequences provided in this Indenture, or to reduce the quorum or change voting requirements set forth in this Indenture;
(2) reduce the rate of, or change or have the effect of changing the time for payment of Interest, including Defaulted Interest, on any
Security;
(3) reduce the principal amount of, or change or have the effect of changing the Stated Maturity of any Security, or adversely
change the date on which any Security may be subject to redemption or reduce the Redemption Price therefor;
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(4) make any Security payable in currency other than that stated in such Security or change the
place of payment of any Security from that stated in such Security or in this Indenture;
(5) make any change in provisions of this
Indenture protecting the right of each Holder of a Security to receive payment of principal of and Interest on such Security on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders holding a majority in
principal amount of the Outstanding Securities to waive defaults or Events of Default;
(6) make any change to or modify in any manner
adverse to the Holders the terms and conditions of the obligations of the Guarantor under Article 15;
(7) make any change to or modify
the ranking of any Security that would adversely affect the Holders of such Security; or
(8) modify any of this Section 902 or any
of the second paragraph of Section 507, except to increase the required percentage to effect the action or to provide that certain other provisions may not be modified or waived without the consent of the Holders of each of the Outstanding
Securities affected thereby.
Upon the written request of the Issuer, accompanied by Board Resolutions authorizing the execution of any
supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders of Securities as aforesaid, the Trustee shall join with the Issuer and the Guarantor in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders of Securities under this Section 902 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
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SECTION 903.
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EFFECT OF SUPPLEMENTAL INDENTURE.
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Any supplemental indenture executed pursuant to the
provisions of this Article 9 shall comply with the Trust Indenture Act, as then in effect,
provided
that this Section 903 shall not require such supplemental indenture or the Trustee to be qualified under the Trust Indenture Act prior to
the time, if ever, such qualification is in fact required under the terms of the Trust Indenture Act or this Indenture has been qualified under the Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party to such
supplemental indenture that any such qualification is required prior to the time, if ever, such qualification is in fact required under the terms of the Trust Indenture Act or this Indenture has been qualified under the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article 9, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such
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modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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SECTION 904.
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NOTATION ON SECURITIES.
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Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 9 may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer or the Trustee shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Issuer’s expense, be prepared and executed by the Issuer,
authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 611) and delivered in exchange for the Securities then Outstanding, upon surrender of such Securities then Outstanding.
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SECTION 905.
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EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO TRUSTEE.
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Prior to entering
into any supplemental indenture pursuant to this Article 9, the Trustee shall be provided with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article 9 and is otherwise authorized or permitted by this Indenture.
ARTICLE 10
COVENANTS
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SECTION 1001.
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PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
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The Issuer covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and punctually pay or cause to be paid when due the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) payable
in respect of the Securities of that series in accordance with the terms of such series of Securities and this Indenture.
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SECTION 1002.
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MAINTENANCE OF OFFICE OR AGENCY.
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The Issuer shall maintain in each Place of Payment for such
series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or
upon the Issuer and the Guarantor in respect of the Securities of that series and this Indenture may be served. The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency.
If at any time the Issuer 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, and the Issuer hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands.
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The Issuer may from time to time designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations;
provided, however
, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Issuer hereby designates as a Place
of Payment for each series of Securities the Corporate Trust Office, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series
(1) are denominated in a Foreign Currency or (2) 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.
So long as the Trustee is the Securities Registrar, the Trustee agrees to mail, or
cause to be mailed, the notices set forth in Section 608(6). If co-registrars have been appointed in accordance with this Section, the Trustee shall mail such notices only to the Issuer and the Holders of Outstanding Securities it can identify
from its records.
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SECTION 1003.
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MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
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If the Issuer shall at any time act as its
own Paying Agent with respect to any series of any Securities, it will, on or before each due date of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) in respect of, any
of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, on or before each due date of the principal of
(and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) in respect of, any Securities of that series, deposit with a Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph) sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of its action or failure so to act.
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The Issuer will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and premium, if any) and Interest (including the Redemption Price upon
redemption pursuant to Article 11) on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or any other obligor upon the Securities) in the making of any such payment of
principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of that series; and
(3) at any time during the continuance of any such default upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by delivery of an Issuer Order 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 in the Securities of any series, 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 (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) in respect of, any Security of any such series and remaining unclaimed for two years
after such principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) have become due and payable shall be paid to the Issuer upon Issuer Request or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer and the Guarantor for payment of such principal of (and premium, if any) and Interest (including the Redemption
Price upon redemption pursuant to Article 11) in respect of, such Security, without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the 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 mailed to Holders of Registered Securities, 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 notice, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Except as permitted under Article 8 the Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory)
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and franchises, and the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises.
However, neither the Issuer nor the Guarantor will be required to preserve any right or franchise if the Board of Directors (or any duly authorized committee of that Board of Directors) of the General Partner or the Guarantor, as the case may be,
determines that the preservation of the right or franchise is no longer desirable in the conduct of the business of the Issuer or the Guarantor, as the case may be.
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SECTION 1005.
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MAINTENANCE OF PROPERTIES.
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The Guarantor will cause all of its material properties used
or useful in the conduct of its business or the business of any Subsidiary of the Guarantor 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 Guarantor may be necessary in order for the General Partner to at all times properly and advantageously conduct its business carried on in
connection with such properties;
provided, however
, that the Guarantor and its Subsidiaries shall not be prevented from selling or otherwise disposing of their properties for value in the ordinary course of their business consistent with the
terms of this Indenture.
The Guarantor will, and will cause each of its Subsidiaries to, keep in force upon
all of its properties and operations insurance policies carried with responsible companies in such amounts and covering all such risks as is customary in the industry in which the Guarantor and its Subsidiaries do business in accordance with
prevailing market conditions and availability.
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SECTION 1007.
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PAYMENT OF TAXES AND OTHER CLAIMS.
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Each of the Guarantor and the Issuer will pay or discharge
or cause to be paid or discharged before it becomes delinquent:
(1) all taxes, assessments and governmental charges levied
or imposed on it or any of its Subsidiaries or on its or any such Subsidiary’s income, profits or property; and
(2)
all lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon its property or the property of any of its Subsidiaries.
However, neither the Guarantor nor the Issuer will be required to pay or discharge or cause to be paid or discharged any tax, assessment,
charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings.
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SECTION 1008.
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APPOINTMENTS TO FILL VACANCIES IN TRUSTEE’S OFFICE.
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The Issuer, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint, upon the terms and conditions and otherwise as provided in Section 608, a Trustee, so that there shall at all times be a Trustee hereunder.
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SECTION 1009.
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STATEMENT AS TO COMPLIANCE.
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The Issuer and the Guarantor will deliver to the Trustee, within
120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer of the Guarantor as to his or her knowledge of the Issuer’s and the
Guarantor’s compliance with all conditions and covenants under the Indenture and, in the event of any noncompliance, specifying such noncompliance and the nature and status thereof. For purposes of this Section 1009, such compliance shall
be determined without regard to any period of grace or requirement of notice under the Indenture.
The Issuer will deliver to the Trustee,
promptly upon becoming aware of (i) any default in the performance or observance of any covenant, agreement or condition contained in the Indenture, or (ii) any Event of Default, an Officers’ Certificate specifying with particularity
such default or Event of Default and further stating what action the Issuer has taken, is taking or proposes to take with respect thereto.
Any notice required to be given under this Section 1009 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust
Office.
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SECTION 1010.
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ADDITIONAL AMOUNTS.
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If any Securities of a series provide for the payment of Additional
Amounts, the Issuer will pay to the Holder of any Security of such series Additional Amounts as may be specified as contemplated by Section 301. Whenever in this Indenture there is mentioned the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established pursuant to Section 301 to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by
Section 301, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear
interest prior to the Maturity Date, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers’ Certificate, the Issuer will furnish the Trustee and the Issuer’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or Interest on the Securities of that series shall be made to Holders of Securities of that series who are not United States Persons without
withholding for or on account of any tax, assessment or other governmental charge described in the Securities of the series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities of that series and the Issuer will pay to the Trustee or such Paying Agent the
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Additional Amounts required by the terms of such Securities. If the Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned Officers’ Certificate, then the
Trustee or such Paying Agent shall be entitled (1) to assume that no such withholding or deduction is required with respect to any payment of principal, premium or Interest with respect to any Securities of a series until it shall have received
a certificate advising otherwise and (2) to make all payments of principal, premium and Interest with respect to the Securities of a series without withholding or deductions until otherwise advised. The Issuer covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them pursuant to
this Section 1010 or in reliance on any Officers’ Certificate furnished pursuant to this Section 1010 or in reliance on the Issuer’s not furnishing such an Officers’ Certificate.
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SECTION 1011.
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WAIVER OF CERTAIN COVENANTS.
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The Issuer may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, with respect to the Securities of any series if before or after the time for such compliance the Holders of at least a majority in principal amount of all Outstanding
Securities of such series, by act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
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SECTION 1012.
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WAIVER OF USURY, STAY OR EXTENSION LAWS.
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The Issuer and the Guarantor each covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture, the Securities or the Guarantees endorsed on the Securities; and the Issuer and the Guarantor each (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 11
REDEMPTION OF
SECURITIES
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SECTION 1101.
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APPLICABILITY OF ARTICLE.
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Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article 11.
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SECTION 1102.
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ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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In case of any redemption at the election of the Issuer
of the Securities of any series, the Issuer shall, at least five (5) days prior to the giving of the notice of redemption in Section 1104 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Issuer shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
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SECTION 1103.
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SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
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If less than all the Securities of any
series originally issued on the same day with the same terms are to be redeemed, the particular Securities to be redeemed shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series;
provided, however
, that so long as DTC or its nominee is the registered owner of a Global Security, such Global Security will be redeemed in accordance with the requirements of DTC.
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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
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SECTION 1104.
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NOTICE OF REDEMPTION.
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Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 days nor more than 60 days prior to the Redemption Date, unless a shorter period is specified by the terms of such series established pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the
redemption of any other Security or portion thereof.
Any notice that is mailed to the Holders of Securities in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.
All notices of redemption shall
state:
(1) the Redemption Date;
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(2) the Redemption Price and Additional Amounts, if any, payable upon redemption;
(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, that
on and after the Redemption Date, upon surrender of such Security, the holder will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if
any;
(7) that the redemption is for a sinking fund, if such is the case; and
(8) the CUSIP number of such Securities, if any.
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.
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SECTION 1105.
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DEPOSIT OF REDEMPTION PRICE.
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On or before any Redemption Date, the Issuer shall deposit or
cause to be deposited with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article 12, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof which are to be redeemed
on that date.
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SECTION 1106.
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SECURITIES PAYABLE ON REDEMPTION DATE.
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Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at a redemption price therein specified (the “
Redemption Price
”) in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) (together with accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Issuer shall
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default in the payment of the Redemption Price and accrued interest) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the Issuer at the Redemption Price, together with accrued interest, if any, to the Redemption Date; and
provided however
that installments of interest on Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by or provided in, as the case may be, the Security.
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SECTION 1107.
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SECURITIES REDEEMED IN PART.
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Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article 11 or of Article 12) shall be surrendered at a Place of Payment therefor (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 or her 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 Security or
Securities of the same series of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Global Security is so
surrendered, the Issuer shall execute and the Trustee shall authenticate and deliver to the depositary, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the
Global Security so surrendered.
ARTICLE 12
SINKING FUNDS
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SECTION 1201.
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APPLICABILITY OF ARTICLE.
|
The provisions of this Article 12 shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
“
mandatory sinking fund payment
,” and any payment in excess of such minimum amount provided for by the terms of such Securities of any series is herein referred to as an “
optional sinking fund payment
.” If provided
for by the terms of any Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
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SECTION 1202.
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SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
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The Issuer may, in satisfaction of all
or any part of any mandatory sinking fund payment with respect to the Securities of a series, (1) deliver Outstanding Securities of such series (other than any previously called for redemption) 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 Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, as provided for by the
terms of such Securities, or which have otherwise been acquired by the Issuer;
provided
,
however
, that such Securities so delivered or applied as a credit have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
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SECTION 1203.
|
REDEMPTION OF SECURITIES FOR SINKING FUND.
|
Not less than 60 days prior to each sinking fund
payment date for Securities of any series, the Issuer will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Issuer shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the 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 13
REPAYMENT AT THE OPTION OF HOLDERS
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SECTION 1301.
|
APPLICABILITY OF ARTICLE.
|
Repayment of Securities of any series before their Stated Maturity
at the option of Holders thereof shall be made in accordance with the applicable terms, if any, of such Securities and (except as otherwise specified by the terms of such series established pursuant to Section 301) in accordance with this
Article 13.
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SECTION 1302.
|
REPAYMENT OF SECURITIES.
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Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with Interest, if any, thereon accrued to the Repayment Date specified in or
pursuant to the terms of such Securities. The Issuer covenants that on or prior to the Repayment Date it will deposit 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 currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal (or, if so provided by the terms of the Securities of such series, a percentage of the principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued Interest on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
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SECTION 1303.
|
EXERCISE OF OPTION.
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Securities of any series subject to repayment at the option of the Holders
thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise or the repayment option by the Holder shall be irrevocable unless waived by the Issuer.
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SECTION 1304.
|
WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE.
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If Securities of any series
providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article 13 and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to
be repaid shall become due and payable and shall be paid by the Issuer on the Repayment Date therein specified, and on and after such Repayment Date (unless the Issuer shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear Interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of such Security so to be repaid shall be paid by the Issuer,
together with accrued Interest, if any, to the Repayment Date; and
provided however
that, installments of Interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without Interest thereon, unless the
Issuer shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of
Section 307.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such
principal amount (together with Interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of Interest borne by or provided in, as the case may be, such Security.
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SECTION 1305.
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SECURITIES REPAID IN PART.
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Upon surrender of any Security which is to be repaid in part only,
the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Issuer, a new Security or Securities of the same series, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.
ARTICLE 14
MEETINGS OF HOLDERS OF
SECURITIES
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SECTION 1401.
|
PURPOSE FOR WHICH MEETINGS MAY BE CALLED.
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A meeting of Holders of Securities of any particular
series may be called at any time and from time to time pursuant to this Article 14 to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
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SECTION 1402.
|
CALL, NOTICE AND PLACE OF MEETINGS.
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(1) The Trustee may at any time call a meeting of Holders
of Securities of any particular series for any purpose specified in Section 1401, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of Holders of Securities of any particular series, setting forth
the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Issuer, pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the Outstanding
Securities of any particular series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Issuer or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (1) of this Section 1402.
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SECTION 1403.
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PERSONS ENTITLED TO VOTE AT MEETINGS.
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To be entitled to vote at any meeting of Holders of
Securities of any particular 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
72
entitled to be present or to speak at any meeting of Holders of Securities of any particular 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.
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SECTION 1404.
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QUORUM; ACTION.
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The Persons entitled to vote a majority in principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series;
provided
,
however
, that if any action is to be taken at such meeting with respect to a request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in aggregate principal amount of the Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum with respect to such matter. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at the reconvening of any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days; at the reconvening of any meeting adjourned or further adjourned for
lack of a quorum, the persons entitled to vote 25% in aggregate principal amount of the then Outstanding Securities of such series shall constitute a quorum for the taking of any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 1402(2), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series;
provided
,
however
, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at
any meeting of Holders of Securities of particular any series duly held in accordance with this Section 1404 shall be binding on all the Holders of Securities of such series, whether or not present or represented at the meeting.
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Notwithstanding the foregoing provisions of this Section 1404, if any action is to be taken
at a meeting of Holders of Securities of any particular series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders
of such series and one or more additional series:
(1) there shall be no minimum quorum requirement for such meeting and
(2) the aggregate principal amount of the Outstanding Securities of all such series that are entitled to vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under
this Indenture.
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SECTION 1405.
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DETERMINATION OF VOTING RIGHTS, CONDUCT AND ADJOURNMENT OF MEETINGS.
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(1) Notwithstanding any
provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspector of elections, 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. 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 1402(2), in which case the Issuer 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 the
Outstanding Securities of such series held or represented by him;
provided
,
however
, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any particular series duly called pursuant to Section 1402 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.
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SECTION 1406.
|
COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
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The vote upon any resolution submitted to any
meeting of Holders of Securities of any particular 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
74
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any particular series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1402
and, if applicable, Section 1404. 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 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 15
THE GUARANTEES
By its execution hereof, the Guarantor acknowledges and agrees that it receives
substantial benefits from the Issuer and that the Guarantor is providing its Guarantee for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article 15, the
Guarantor hereby fully and unconditionally guarantees to each Holder of Securities of such series that are guaranteed by the Guarantor, and authenticated and delivered by the Trustee and its successors and assigns that: (i) the principal of and
premium (including the Redemption Price upon redemption pursuant to Article 11) and Interest on Securities of such series shall be duly and punctually paid in full when due, whether at the Maturity Date, upon acceleration, upon redemption, or
otherwise, and Interest on overdue principal and (to the extent permitted by law) Interest on any overdue Interest, if any, on Securities of such series and all other obligations of the Issuer to the Holders of Securities of such series or the
Trustee hereunder or under the Securities of such series (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the terms hereof; and (ii) in case of any extension of time of payment or renewal
of any Securities of such series or any of such other obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the Maturity Date, by acceleration, call for
redemption or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 1503 hereof (collectively, the “
Guarantee Obligations
”).
Subject to the provisions of this Article 15, the Guarantor hereby agrees that its Guarantee hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Securities of such series that are guaranteed by the Guarantor, or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities of such series
with respect to any thereof, the entry of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby
waives and relinquishes: (a) any right to require the Trustee, the Holders of Securities or such
75
series or the Issuer (each, a “
Benefited Party
”) to proceed against the Issuer or any other Person or to proceed against or exhaust any security held by a Benefited Party at any
time or to pursue any other remedy in any Benefited Party’s power before proceeding against the Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or
the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by
this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Guarantor, the Issuer, any Benefited Party, any
creditor of the Guarantor or the Issuer or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party,
including but not limited to an election to proceed against the Guarantor for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party’s election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy
Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantor hereby covenants that, except as otherwise provided therein, the Guarantee shall not be discharged
except by payment in full of all Guarantee Obligations, including the principal and Interest on the Securities of such series and all other costs provided for under this Indenture or as provided in Article 6.
If any Holder or the Trustee is required by any court or otherwise to return to either the Issuer or the Guarantor, or any trustee or similar
official acting in relation to either the Issuer or the Guarantor, any amount paid by the Issuer or the Guarantor to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The
Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guarantee Obligations hereby until payment in full of all such obligations guaranteed hereby. The Guarantor agrees that, as
between it, on the one hand, and the Holders of Securities of such series that are guaranteed by the Guarantor and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 5
hereof for the purposes hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations, and (y) in the event of any acceleration of such obligations as provided in Article
5 hereof, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of the Guarantee.
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SECTION 1502.
|
EXECUTION AND DELIVERY OF GUARANTEE.
|
To evidence the Guarantee set forth in Section 1501
hereof, the Guarantor agrees that a notation of the Guarantee shall be endorsed on each Security of such series that is guaranteed by the Guarantor, and authenticated and delivered by the Trustee, and that this Indenture shall be executed on behalf
of the Guarantor by two Officers of the Guarantor.
The Guarantor agrees that the Guarantee set forth in this Article 15 shall remain in
full force and effect and apply to all the Securities of such series that are guaranteed by the Guarantor notwithstanding any failure to endorse on each Security of such series a notation of the Guarantee.
76
If an Officer whose facsimile signature is on a Security of such series or a notation of
Guarantee no longer holds that office at the time the Trustee authenticates such Security on which the Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set
forth in this Indenture and endorsed on such Security on behalf of the Guarantor.
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SECTION 1503.
|
LIMITATION OF GUARANTOR’S LIABILITY, CERTAIN BANKRUPTCY EVENTS.
|
(1) The Guarantor, and by
its acceptance hereof each Holder of Securities of such series that are guaranteed by the Guarantor, hereby confirms that it is the intention of all such parties that the Guarantee Obligations of the Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing intention, the Holders and
the Guarantor hereby irrevocably agree that the Guarantee Obligations of the Guarantor under this Article 15 shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the Guarantor, result
in the Guarantee Obligations of the Guarantor under the Guarantee not constituting a fraudulent transfer or conveyance.
(2) The Guarantor
hereby covenants and agrees, to the fullest extent that it may do so under applicable law, that in the event of the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Issuer, the Guarantor shall not file (or join in any filing
of), or otherwise seek to participate in the filing of, any motion or request seeking to stay or to prohibit (even temporarily) execution on the Guarantee and hereby waives and agrees not to take the benefit of any such stay of execution, whether
under Section 362 or 105 of the Bankruptcy Law or otherwise.
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SECTION 1504.
|
APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTOR.
|
(1) For purposes of any
provision of this Indenture which provides for the delivery by the Guarantor of an Officers’ Certificate and/or an Opinion of Counsel, the definitions of such terms in Section 101 hereof shall apply to the Guarantor as if references
therein to the Issuer or the General Partner, as applicable, were references to the Guarantor.
(2) Any request, direction, order or
demand which by any provision of this Indenture is to be made by the Guarantor shall be sufficient if evidenced as described in Sections 105 and 106 hereof as if references therein to the Issuer were references to the Guarantor.
(3) Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the
Holders of Securities to or on the Guarantor may be given or served as described in Section 105 hereof as if references therein to the Issuer were references to the Guarantor.
(4) Upon any demand, request or application by the Guarantor to the Trustee to take any action under this Indenture, the Guarantor shall
furnish to the Trustee such certificates and opinions as are required in Section 102 hereof as if all references therein to the Issuer were references to the Guarantor.
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SECTION 1505.
|
RELEASE OF GUARANTEE.
|
(1) Notwithstanding the provisions of Section 1501 of this
Indenture, the Guarantor shall be automatically and unconditionally released from its obligations under the Indenture:
(i)
upon the Issuer’s exercise of its legal defeasance option or its covenant defeasance option or if the Issuer’s obligations under this Indenture are discharged in accordance with the terms of this Indenture; or
(ii) upon delivery of an Officers’ Certificate to the Trustee that the Guarantor does not guarantee the obligations of the
Issuer under any indebtedness for money borrowed of the Issuer and that any other guarantees of such Guarantor have been released other than through discharges as a result of payment by such Guarantor on such guarantees.
78
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
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By:
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COLUMBIA PROPERTY TRUST, INC.,
its
General Partner
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/s/ James A. Fleming
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Name:
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James A. Fleming
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Title:
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Executive Vice President and Chief Financial Officer
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COLUMBIA PROPERTY TRUST, INC.
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/s/ James A. Fleming
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Name:
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James A. Fleming
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Title:
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Executive Vice President and Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Richard Prokosch
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Name:
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Richard Prokosch
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Title:
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Vice President
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EXHIBIT A-1
FORMS OF CERTIFICATION
FORM OF
CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or
sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the
form attached hereto, as of the date hereof, [US$] principal amount of the above-captioned Securities is owned by (i) person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“United States Person(s)”), (ii) United States Person(s) that are
(a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v), are herein referred to as “financial institutions”) purchasing for
their own account or for resale or (b) United States Person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise Columbia Property Trust Operating Partnership, L.P. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions described in clause (iii) (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its
“possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary Global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
A-1-1
We understand that this certification is required in connection with certain tax legislation in
the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
[To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
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[Morgan Guaranty Trust Company of New York, Brussels Office,] as Operator of the Euroclear System [Clearstream S.A.]
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By:
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A-1-2
Exhibit 4.2
COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P., as Issuer
COLUMBIA PROPERTY TRUST, INC., as Guarantor
U.S. BANK NATIONAL ASSOCIATION, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of
March 12, 2015
to
INDENTURE
Dated as of
March 12, 2015
4.150% Senior
Notes due 2025
TABLE OF CONTENTS
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P
AGE
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ARTICLE 1
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D
EFINITIONS
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Section 1.01.
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Relationship with Indenture
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2
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Section 1.02.
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Definitions
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2
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Section 1.03.
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Other Definitions
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8
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ARTICLE 2
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I
SSUE
, D
ESCRIPTION
, E
XECUTION
, R
EGISTRATION
AND
E
XCHANGE
OF
N
OTES
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Section 2.01.
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Issue of Notes
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9
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Section 2.02.
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Form, Dating and Denominations; Legends
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9
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Section 2.03.
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Execution and Authentication; Additional Notes
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9
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Section 2.04.
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Registration, Transfer and Exchange
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10
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ARTICLE 3
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O
PTIONAL
R
EDEMPTION
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Section 3.01.
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Optional Redemption of Notes
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13
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Section 3.02.
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Notice of Redemption; Selection of Notes
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14
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Section 3.03.
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Payment of Notes Called for Redemption by the Issuer
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16
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Section 3.04.
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Sinking Fund
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16
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ARTICLE 4
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P
ARTICULAR
C
OVENANTS
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Section 4.01.
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Aggregate Debt Test
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16
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Section 4.02.
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Debt Service Test
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17
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Section 4.03.
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Secured Debt Test
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18
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Section 4.04.
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Maintenance of Total Unencumbered Assets
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18
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ARTICLE 5
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E
VENTS
OF
D
EFAULT
; R
EMEDIES
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Section 5.01.
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Events of Default
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ARTICLE 6
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S
UPPLEMENTAL
I
NDENTURES
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Section 6.01.
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Supplemental Indentures with and without Consent of Noteholders
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i
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ARTICLE 7
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C
ONSOLIDATION
, M
ERGER
, S
ALE
, C
ONVEYANCE
AND
L
EASE
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Section 7.01.
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Issuer May Consolidate on Certain Terms
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Section 7.02.
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General Partner May Consolidate on Certain Terms
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ARTICLE 8
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F
UTURE
G
UARANTEES
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Section 8.01.
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Guarantees
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21
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Section 8.02.
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Release of Guarantee
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Section 8.03.
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Notices
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ARTICLE 9
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M
ISCELLANEOUS
P
ROVISIONS
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Section 9.01.
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Continued Effect
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Section 9.02.
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Payments
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Section 9.03.
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Governing Law
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22
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Section 9.04.
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No Security Interest Created
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Section 9.05.
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Table of Contents, Headings, etc
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23
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Section 9.06.
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Execution in Counterparts
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23
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Section 9.07.
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Severability
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EXHIBIT A
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Form of Note
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EXHIBIT B
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Form of Supplemental Indenture
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ii
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of March 12, 2015 (this “
Supplemental Indenture
”) among Columbia Property Trust,
Inc., a Maryland corporation (hereinafter called the “
General Partner
”), Columbia Property Trust Operating Partnership, L.P., a Delaware limited partnership and subsidiary of the General Partner (hereinafter called the
“
Issuer
”), and U.S. Bank National Association, as trustee (hereinafter called the “
Trustee
”).
RECITALS
WHEREAS, the
General Partner, the Issuer and the Trustee are parties to an Indenture dated as of March 12, 2015 (the “
Indenture
”), providing for the issuance from time to time of one or more series of the Issuer’s debt securities (the
“
Securities
”), the terms of which are to be determined as set forth in Section 301 of the Indenture; and
WHEREAS,
pursuant to Section 901(6) of the Indenture, without the consent of any Holders, the Issuer, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental to the Indenture to establish the form or terms of securities of any series as permitted by Sections 201 and 301 of the Indenture; and
WHEREAS, pursuant to this Supplemental Indenture, the Issuer desires to create a new series of Securities under the Indenture, to be titled
the 4.150% Senior Notes due 2025 in an initial aggregate principal amount of $350,000,000 (the “
Notes
”) and to establish the forms and the terms, conditions, rights and preferences thereof;
WHEREAS, all action on the part of the Issuer necessary to authorize the issuance of the Notes under the Indenture and this Supplemental
Indenture has been duly taken; and
WHEREAS, all acts and requirements necessary to make the Notes, when executed by the Issuer and
authenticated and delivered by the Trustee as provided in the Indenture and this Supplemental Indenture, the valid and binding obligations of the Issuer and to make this Supplemental Indenture a valid and binding agreement in accordance with the
Indenture have been done and performed;
NOW, THEREFORE, in consideration of the premises, agreements and obligations set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
D
EFINITIONS
Section 1.01
. Relationship with Indenture.
With respect to the Notes, this First Supplemental Indenture constitutes an integral
part of the Indenture. In the event of any inconsistency between the Indenture and this First Supplemental Indenture, this First Supplemental Indenture shall govern with respect to the Notes. References to “Security” or
“Securities” shall be deemed to refer to the Notes, unless the context otherwise requires. In addition, the words “herein,” “hereof,” “hereunder,” and words of similar import shall refer to this First
Supplemental Indenture.
Section 1.02.
Definitions
. All terms contained in this Supplemental Indenture shall, except as
specifically provided herein or except as the context may otherwise require, have the meanings defined in the Indenture. Solely with respect to the Notes and this Supplemental Indenture, the following definitions shall be added to Section 101
of the Indenture and replace any existing definitions (as applicable) in the Indenture, each in appropriate alphabetical order, unless the context requires otherwise.
“
Acquired Debt
” means Debt of a Person:
(a) existing at the time such Person is merged or consolidated with or into the General Partner or any of its Subsidiaries or becomes a
Subsidiary of the General Partner; or
(b) assumed by the General Partner or any of its Subsidiaries in connection with the acquisition of
assets from such Person.
Acquired Debt shall be deemed to be incurred on the date the acquired Person is merged or consolidated with or into the General
Partner or any of its Subsidiaries or becomes a Subsidiary of the General Partner or the date of the related acquisition, as the case may be.
“
Agent Member
” means a member of, or a participant in, the Depositary.
“
Annual Debt Service Charge
” means, for any period, the interest expense of the General Partner and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, including, without duplication:
(a) all amortization of debt discount
and premium and deferred financing costs;
(b) all accrued interest;
(c) all capitalized interest; and
2
(d) the interest component of capitalized lease obligations, excluding the interest expense
component of capitalized lease obligations in respect of Approved Bond Transactions.
“
Approved Bond Transaction
” means
those real property projects and any other real property developments (a) in which the General Partner or any of its Subsidiaries acquires an interest as a lessee in real property subject to a bond transaction encumbering the property wherein
the General Partner or any of its Subsidiaries is also the owner of the applicable bonds; (b) pursuant to which rental payments of the General Partner or any of its Subsidiaries as lessee ultimately run to the General Partner or any of its
Subsidiaries in the form of payments on the applicable bonds and are in an amount that are equivalent (or nearly so) with the required payments under the bonds; and (c) which lease (i) has a remaining term of not less than twenty
(20) years or provides a purchase option in favor of the General Partner or any of its Subsidiaries for the underlying land that is exercisable by the General Partner or any of its Subsidiaries at the option of the General Partner or any of its
Subsidiaries, as appropriate, prior to or simultaneously with the expiration of the lease and for a de minimus or nominal purchase price, (ii) under which any required rental payment or other payment due under such lease from the General
Partner or any of its Subsidiaries to the lessor have been assigned to secure the bonds held by the General Partner or any of its Subsidiaries and no payment default has occurred and no other default has occurred which would permit the termination
of the lease, (iii) where no party to such lease is the subject of bankruptcy, insolvency, receivership or other similar events, (iv) contains customary provisions either (A) protective of any lender to the lessee or (B) whereby
the lessor expressly agrees upon request to subordinate the lessor’s fee interest to the rights and remedies of such a lender, (v) where the General Partner’s or any of its Subsidiaries’ interest in the real property or the lease
is not subject to any Lien (other than a permitted Lien) and the instruments securing the bonds held by the General Partner or any of its Subsidiaries, and (vi) such lease and bond documents permit reasonable transferability thereof (including
the right to sublease to occupancy tenants).
“
Cash Equivalents
” means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not more than one year from the date acquired; (b) certificates of deposit with maturities of not more than one year from the date acquired which are issued by a United
States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision
of any such country, acting through a branch or agency, which bank at the time of the acquisition thereof has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company at the time of the acquisition thereof has a
short-term commercial paper rating of at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the
3
date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above;
(d) commercial paper issued by any Person incorporated under the laws of the United States of America or any State thereof and rated at the time of the acquisition thereof at least A-2 or the equivalent thereof by S&P or at least P-2 or the
equivalent thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940, which have at the time of the
acquisition thereof net assets of at least $500,000,000 and at least 85% of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.
“
Certificated Note
” means a Note in registered individual form without interest coupons.
“
Close of Business
” means 5:00 p.m., New York City time.
“
Consolidated Income Available for Debt Service
” for any period means Consolidated Net Income of the General Partner and its
Subsidiaries for such period, plus amounts which have been deducted and minus amounts which have been added for, without duplication:
(a)
interest expense on Debt (excluding the interest expense component of capitalized lease obligations in respect of Approved Bond Transactions);
(b) provision for taxes based on income;
(c) amortization of debt discount, premium ‘and deferred financing costs;
(d) provisions for gains and losses on sales or other dispositions of properties and other investments, and impairment charges;
(e) property depreciation and amortization;
(f) the effect of any non-cash items, including the effect of non-recurring or other unusual items, as determined by us in good faith, and
swap ineffectiveness charges or income or expense attributable to transactions involving derivative instruments that do not qualify for hedge accounting; and
(g) amortization of deferred charges,
all
determined on a consolidated basis in accordance with GAAP.
“
Consolidated Net Income
” for any period means the amount of
net income (or loss) of the General Partner and its Subsidiaries for such period, excluding, without duplication:
(a) extraordinary
items; and
4
(b) the portion of net income (but not losses) of the General Partner and its Subsidiaries
allocable to minority interests in unconsolidated Persons to the extent that cash dividends or distributions have not actually been received by the General Partner or one of its Subsidiaries,
all determined on a consolidated basis in accordance with GAAP.
“
Custodian
” means U.S. Bank National Association, as custodian with respect to the Global Notes, or any successor entity
thereto.
“
Depositary
” means the clearing agency registered under the Exchange Act that is designated to act as the
depositary for the Global Notes. DTC shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter, “
Depositary
” shall mean or
include such successor.
“
Equity Interest
” means, with respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, any security
convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests),
and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is
authorized or otherwise existing on any date of determination.
“
Fair Market Value
” means, with respect to any asset or
property, the fair market value, as determined in good faith by the Board of Directors.
“
General Partner
” shall have the
meaning set forth in the recitals, and shall include its successors and assigns.
“
Global Note
” means a Note in
registered global form without interest coupons.
“
Guarantee
” means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt or other obligation under any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation under any Debt of such other Person (whether arising by virtue of partnership arrangements, or by agreement to
keep-well,
to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial
5
statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Debt or other obligation under any Debt of the payment thereof or to
protect such obligee against loss in respect thereof, in whole or in part;
provided
that the term “Guarantee” does not include endorsements for collection or deposit in the ordinary course of business. The terms
“Guarantee” and “Guaranteeing,” used as verbs, have a corresponding meaning.
“
Guarantors
” means
(i) the General Partner and (ii) each of the Issuer’s or the General Partner’s Subsidiaries, if any, that in the future executes a supplemental indenture in which such Subsidiary agrees to be bound by the terms of the Indenture
and this Supplemental Indenture as set forth in Article 8 of this Supplemental Indenture and Article 15 of the Indenture as a Guarantor;
provided
that any Subsidiary constituting a Guarantor as described above shall cease to constitute a
Guarantor with respect to the Notes when its respective guarantee is released in accordance with the terms of the Indenture and this Supplemental Indenture.
“
Indenture
” shall have the meaning set forth in the recitals to this Supplemental Indenture.
“
Interest Payment Date
” means each April 1 and October 1 of each year, commencing October 1, 2015.
“
Investment
” means, with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by
such Person, by means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person; (b) a loan, advance or extension of credit to, capital contribution to, guaranty of indebtedness of, or purchase
or other acquisition of any indebtedness of, another Person, including any partnership or joint venture interest in such other Person; (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute the business or a division or operating unit of another Person; (d) the purchase or other acquisition of Cash Equivalents or (e) the acquisition in the ordinary course of business of any interests in real property or
any other investment. Any binding commitment to make an Investment in any other Person, as well as any option of another Person to require an Investment in such Person, shall constitute an Investment. Except as expressly provided otherwise, for
purposes of determining compliance with any covenant contained in the Indenture, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“
Issue Date
” means, with respect to the Notes being issued on the date hereof, the date hereof, and with respect to any
additional Notes, the date of original issuance of such additional Notes.
“
Maturity Date
” means April 1, 2025.
6
“
Moody’s
” means Moody’s Investors Service, Inc. and its successors.
“
Note
” or “
Notes
” shall have the meaning set forth in the recitals to this Supplemental Indenture.
“
principal
,” when used with respect to any Note, shall be deemed to include a reference to “and premium, if any,”
unless otherwise expressly stated or the context otherwise requires.
“
Property
” means any parcel of real property,
together with all improvements thereon, owned or leased pursuant to a ground lease by the General Partner or any of its Subsidiaries or any Unconsolidated Affiliate of the General Partner or any of its Subsidiaries and which is located in a state of
the United States of America or the District of Columbia.
“
Regular Record Date
” for the interest payable on any Interest
Payment Date means the March 15 or September 15 (whether or not a Business Day) next preceding such Interest Payment Date.
“
S&P
” means Standard & Poor’s Rating Services, a division of The McGraw Hill Companies, Inc. and its
successors.
“
Subsidiary Guarantors
” means each Subsidiary of the Issuer or the General Partner, if any, that in the
future executes a supplemental indenture in accordance with Section 8.01 in which such Subsidiary agrees to be bound by the terms of the Indenture as a Guarantor.
“
Total Assets
” means, with respect to any Person, the sum of, without duplication:
(a) Undepreciated Real Estate Assets; and
(b) all other assets of such Person (excluding (i) accounts receivable, (ii) intangibles (but not excluding intangibles related to
real property acquisitions) and (iii) the principal component of capitalized lease obligations in respect of Approved Bond Transactions),
all
determined on a consolidated basis in accordance with GAAP.
“
Total Unencumbered Assets
” means, with respect to any
Person, the sum of, without duplication:
(a) those Undepreciated Real Estate Assets which are not subject to a Lien securing Debt; and
(b) all other assets (excluding (i) accounts receivable, (ii) intangibles (but not excluding intangibles related to real
property acquisitions) and (iii) the principal component of capitalized lease obligations in respect of Approved Bond Transactions) of the General Partner and its Subsidiaries not subject to a Lien securing Debt,
7
all determined on a consolidated basis in accordance with GAAP; provided, however, that, in determining Total
Unencumbered Assets as a percentage of outstanding Unsecured Debt for purposes of Section 4.04 all investments in unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities shall be excluded
from Total Unencumbered Assets. For the avoidance of doubt, cash held by a “qualified intermediary” in connection with proposed like-kind exchanges pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, which may
be classified as “restricted” for purposes of United Stated generally accepted accounting purposes, will nonetheless be considered Total Unencumbered Assets, so long as the General Partner or a Subsidiary thereof has the right to
(i) direct the qualified intermediary to return such cash to the General Partner or a Subsidiary thereof if and when the General Partner or a Subsidiary thereof fails to identify or acquire the proposed like-kind property or at the end of the
180-day replacement period or (ii) direct the qualified intermediary to use such cash to acquire like-kind property.
“
Unconsolidated Affiliate
” means, in respect of any Person, any other Person (a) in whom such Person holds an
Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such first Person on the
consolidated financial statements of such first Person, or (b) which is not a Subsidiary of such first Person.
“
Undepreciated Real Estate Assets
” means, with respect to any Person, as of any date, the cost (original cost plus capital
improvements) of real estate assets of such Person and its Subsidiaries on such date, before depreciation and amortization, all determined on a consolidated basis in accordance with. GAAP.
“
Unsecured Debt
” means Debt of the General Partner or any of its Subsidiaries which is not secured by a Lien on any property
or assets of the General Partner or any of its Subsidiaries.
Certain terms used in Article 3 are defined in Section 3.01.
Section 1.03.
Other Definitions
.
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Term
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Defined in Section
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“Comparable Treasury Issue”
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3.01
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“Comparable Treasury Price”
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3.01
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“Event of Default”
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5.01
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“Independent Investment Banker”
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3.01
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“Primary Treasury Dealer”
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3.01
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8
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Term
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Defined in Section
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“Redemption Date”
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3.02
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“Redemption Price”
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3.01
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“Reference Treasury Dealer Quotations”
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3.01
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“Reference Treasury Dealer”
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3.01
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“Treasury Rate”
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3.01
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ARTICLE 2
I
SSUE
, D
ESCRIPTION
, E
XECUTION
, R
EGISTRATION
AND
E
XCHANGE
OF
N
OTES
Section 2.01
. Issue of Notes.
A new series of Securities is to
be issued under the Indenture as supplemented by this Supplemental Indenture. The series shall be titled the “4.150% Senior Notes due 2025.”
Section 2.02.
Form, Dating and Denominations; Legends
. The Notes and the Trustee’s certificate of authentication will be
substantially in the form attached as Exhibit A. The terms and provisions contained in the form of the Notes annexed as Exhibit A constitute, and are hereby expressly made, a part of the Indenture and this Supplemental Indenture. The Notes may have
notations, legends or endorsements required by law, rules of or agreements with national securities exchanges to which the Issuer is subject, or usage.
Section 2.03.
Execution and Authentication; Additional Notes
. (a) The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture is unlimited;
provided
that upon initial issuance on the date hereof the aggregate principal amount of Notes outstanding shall not exceed $350,000,000, except for Notes issued upon exchange or
registration of transfer of other Notes as provided herein and except as provided in Section 2.04 and 3.03. The Issuer may, without the consent of or notice to the Holders of Notes, issue additional Notes from time to time in the future with
the same terms, provisions and the same CUSIP number as the Notes issued on the date hereof, except for any difference in issue price, Interest accrued prior to the issue date and first Interest Payment Date of those additional Notes;
provided
that such additional Notes shall be treated as part of the same issue as and fungible with the Notes issued on the date hereof for United States federal income tax purposes and shall carry the same right to receive accrued and unpaid
Interest as the other Notes then outstanding; provided, however, that, notwithstanding the foregoing, (i) if the additional Notes are not fungible with the Notes for United States federal income tax purposes, the additional Notes will have a
separate CUSIP number and (ii) if the Issuer has effected legal defeasance or covenant defeasance with respect to the Notes pursuant to Section 402 of the Indenture or has effected satisfaction and discharge with respect to the Notes
pursuant to Section 401 of the Indenture, no additional Notes may be issued. The Notes issued on the date hereof and any such additional Notes shall constitute a single series of debt securities, and in
9
circumstances in which the Indenture provides for the Holders of Notes to vote or take any action, the Holders of the Notes issued on the date hereof and any such additional Notes will vote or
take that action as a single class.
(b) At any time and from time to time after the execution and delivery of this Supplemental
Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication. The Trustee will authenticate and deliver
(i) Notes for original issue in the aggregate principal amount not to exceed $350,000,000, and
(ii) additional Notes from time to time for original issue in aggregate principal amounts specified by the Issuer.
Section 2.04.
Registration, Transfer and Exchange
. (a) The Notes will be issued in registered form only, without coupons, and
the Issuer shall cause the Trustee to maintain a Security Register of the Notes, for registering the record ownership of the Notes by the Holders and transfers and exchanges of the Notes.
(b) (1) Each Global Note will be registered in the name of the Depositary or its nominee and, so long as DTC is serving as the Depositary
thereof, will bear the DTC Legend.
(2) Each Global Note will be delivered to the Trustee as custodian for the Depositary.
Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to the Depositary, its successors or their respective nominees, except (1) as set forth in Section 2.04(b)(4) and
(2) transfers of portions thereof in the form of Certificated Notes may be made upon request of an Agent Member (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in
accordance with customary procedures of the Depositary and in compliance with this Section.
(3) Agent Members will have no
rights under the Indenture with respect to any Global Note held on their behalf by the Depositary, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner and Holder of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, the Depositary or its nominee may grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Note
through an Agent Member) to take any action which a Holder is entitled to take under the Indenture or the Notes, and nothing herein will impair, as between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any security.
10
(4) If (x) the Depositary notifies the Issuer that it is unwilling or unable
to continue as Depositary for a Global Note and a successor depositary is not appointed by the Issuer within 90 days of the notice or (y) an Event of Default has occurred and is continuing and the Trustee has received a request from the
Depositary, the Trustee will promptly exchange each beneficial interest in the Global Note for one or more Certificated Notes in authorized denominations having an equal aggregate principal amount registered in the name of the owner of such
beneficial interest, as identified to the Trustee by the Depositary, and thereupon the Global Note will be deemed canceled.
(c) Each
Certificated Note will be registered in the name of the holder thereof or its nominee.
(d) A Holder may transfer a Note (or a beneficial
interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or
requesting such an exchange, accompanied by any certification, opinion or other document as the Trustee may reasonably request. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section by noting the
same in the register maintained by the Trustee for the purpose;
provided
that
(x) no transfer or exchange will be
effective until it is registered in such register and
(y) the Trustee will not be required (i) to issue, register the
transfer of or exchange any Note for a period of 15 days before any selection of Notes for redemption, (ii) to register the transfer of or exchange any Note so selected for redemption or purchase in whole or in part, except, in the case of a
partial redemption or purchase, that portion of any Note not being redeemed or purchased, or (iii) if a redemption is to occur after a Regular Record Date but on or before the corresponding Interest Payment Date, to register the transfer of or
exchange any Note on or after the Regular Record Date and before the date of redemption or purchase. Prior to the registration of any transfer, the Issuer, the Trustee and their agents will treat the Person in whose name the Note is registered as
the owner and Holder thereof for all purposes (whether or not the Note is overdue), and will not be affected by notice to the contrary.
From time to time the Issuer will execute and the Trustee will authenticate additional Notes as necessary in order to permit the registration
of a transfer or exchange in accordance with this Section.
No service charge will be imposed in connection with any transfer or exchange
of any Note, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than a transfer tax or other similar governmental charge payable upon exchange
pursuant to subsection (b)(4)).
11
(e) (1)
Global Note to Global Note
. If a beneficial interest in a Global Note is
transferred or exchanged for a beneficial interest in another Global Note, the Trustee will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or
exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or
exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2)
Global Note to Certificated Note
. If a beneficial interest in a Global Note is transferred or exchanged for a
Certificated Note, the Trustee will (x) record a decrease in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (y) deliver one or more new Certificated Notes in authorized denominations
having an equal aggregate principal amount to the transferee (in the case of a transfer) or the owner of such beneficial interest (in the case of an exchange), registered in the name of such transferee or owner, as applicable.
(3)
Certificated Note to Global Note
. If a Certificated Note is transferred or exchanged for a beneficial interest in a
Global Note, the Trustee will (x) cancel such Certificated Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or
exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or more new Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred
or unexchanged portion of the canceled Certificated Note, registered in the name of the Holder thereof.
(4)
Certificated Note to Certificated Note
. If a Certificated Note is transferred or exchanged for another Certificated Note, the Trustee will (x) cancel the Certificated Note being transferred or exchanged, (y) deliver one or more new
Certificated Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Certificated Note (in the case
of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Certificated Note, deliver to the Holder thereof one or
12
more Certificated Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Certificated Note, registered in the
name of the Holder thereof.
ARTICLE 3
O
PTIONAL
R
EDEMPTION
Section 3.01.
Optional Redemption of Notes
. (a) The Issuer shall have the right, at its option, to redeem the Notes for cash
at any time or from time to time prior to January 1, 2025, in whole or in part, at a redemption price (with respect to the Notes to be redeemed on any Redemption Date pursuant to this Section 3.01(a), the “
Redemption
Price
”) equal to the greater of: (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and Interest on the Notes to be redeemed
(exclusive of Interest accrued to the applicable Redemption Date) discounted to such Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus, in each case,
accrued and unpaid Interest on the principal amount of the Notes being redeemed to, but excluding, such Redemption Date. In addition, the Issuer may, at its option, redeem the Notes, at any time or from time to time on or after January 1, 2025,
in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid Interest on the principal amount of the Notes being redeemed to, but not including, the applicable Redemption Date.
“
Treasury Rate
” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield
to maturity of the Comparable Treasury Issue, calculated by the Issuer using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury
Rate shall be calculated on the third Business Day preceding the applicable Redemption Date and shall not be less than zero.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the Independent Investment Banker as having
a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity
to the remaining term of the Notes.
“
Independent Investment Banker
” means one of J.P. Morgan Securities LLC, Morgan
Stanley & Co. LLC or Wells Fargo Securities, LLC and each of their respective successors (whichever shall be appointed by the Issuer in respect of the applicable Redemption Date) or, if any such firm or its respective successor, if any, is
unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Issuer.
13
“
Comparable Treasury Price
” means, with respect to any Redemption Date,
(i) if four Reference Treasury Dealer Quotations are obtained, the average (as calculated by the Issuer) of the remaining Reference Treasury Dealer Quotations for such Redemption Date after excluding the highest and lowest such Reference
Treasury Dealer Quotations from the four selected, (ii) if fewer than four but more than one such Reference Treasury Dealer Quotations are obtained, the average (as calculated by the Issuer) of all such quotations, or (iii) if only one
such Reference Treasury Dealer Quotation is obtained, such Reference Treasury Dealer Quotation.
“
Reference Treasury
Dealer
” means each of (i) J.P. Morgan Securities LLC (or its successor) or an affiliate thereof which is a Primary Treasury Dealer; (ii) Morgan Stanley & Co. LLC (or its successor) or an affiliate thereof which is a
Primary Treasury Dealer; (iii) a Primary Treasury Dealer selected by Wells Fargo Securities, LLC (or its successor); provided, however, that if any such firm (or, if applicable, any of their affiliates) or any of their successors, as the case
may be, shall cease to be a primary U.S. Government securities dealer in New York City (a “
Primary Treasury Dealer
”), the Issuer will substitute therefor another Primary Treasury Dealer; and (iv) one other Primary Treasury
Dealer selected by the Issuer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average (as calculated by the Issuer) of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
(b) Notwithstanding
the foregoing, the Issuer shall not redeem the Notes pursuant to Section 3.01(a) on any date if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured on or prior to such date.
Section 3.02.
Notice of Redemption; Selection of Notes
. In case the Issuer shall desire to exercise the right to redeem all or, as
the case may be, any part of the Notes pursuant to Section 3.01, it shall fix a date for redemption (the “
Redemption Date
”) and it or, at its written request received by the Trustee not fewer than five Business Days prior (or such
shorter period of time as may be acceptable to the Trustee) to the date the notice of redemption is to be mailed, the Trustee in the name of and at the expense of the Issuer, shall mail or cause to be mailed a notice of such redemption not fewer
than 30 days nor more than 60 days prior to the Redemption Date to each Holder of Notes so to be redeemed in whole or in part at its last address as the same appears on the Security Register;
provided
that the text of the notice shall be
prepared by the Issuer. Each such notice of
14
redemption shall specify: (i) the aggregate principal amount of Notes to be redeemed, (ii) the CUSIP number or numbers of the Notes being redeemed, (iii) the Redemption Date (which
shall be a Business Day), (iv) the Redemption Price at which Notes’ are to be redeemed, (v) the place or places of payment and that payment will be made upon presentation and surrender of such Notes and (vi) that Interest accrued
and unpaid to, but excluding, the Redemption Date will be paid as specified in said notice, and that on and after said date Interest on Notes or portions of Notes to be redeemed will cease to accrue. If fewer than all the Notes are to be redeemed,
the notice of redemption shall identify the Notes to be redeemed (including CUSIP numbers, if any). In case any Note is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and
shall state that, on and after the Redemption Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be issued. Such mailing shall be by first class mail. The notice, if mailed in the
manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.
Whenever any
Notes are to be redeemed, the Issuer will give the Trustee written notice of the Redemption Date, together with an Officers’ Certificate as to the aggregate principal amount of Notes to be redeemed not fewer than 30 days (or such shorter period
of time as may be acceptable to the Trustee) prior to the Redemption Date.
On or prior to the Redemption Date specified in the notice of
redemption given as provided in this Section 3.02, the Issuer will deposit with the Paying Agent (other than the Issuer or the General Partner acting as its own Paying Agent) an amount of money in immediately available funds sufficient to redeem on
the Redemption Date all the Notes (or portions thereof) so called for redemption at the appropriate Redemption Price, together with accrued and unpaid Interest, if any, on the Notes or portions thereof to be redeemed;
provided
that if such
payment is made on the Redemption Date, it must be received by the Paying Agent, by 11:00 a.m., New York City time, on such date. The Issuer shall be entitled to retain any interest, yield or gain on amounts deposited with the Paying Agent pursuant
to this Section 3.02 in excess of amounts required hereunder to pay the Redemption Price, together with accrued and unpaid Interest, if any, on the Notes or portions thereof to be redeemed.
If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select the Notes or portions thereof of the Global Note or
the Certificated Notes to be redeemed (in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof) on a
pro rata
basis or by another method that the Trustee deems fair and appropriate or that is
required by the Depositary.
15
Section 3.03.
Payment of Notes Called for Redemption by the Issuer
.
If notice
of redemption has been given as provided in Section 3.02, the Notes or portion of Notes with respect to which such notice has been given shall become due and payable on the Redemption Date and at the place or places stated in such notice at the
Redemption Price, together with accrued and unpaid Interest, if any, thereon, and if the Paying Agent holds funds sufficient to pay the Redemption Price of such Notes, together with accrued and unpaid Interest, if any, thereon, then, on and after
such Redemption Date (a) such Notes will cease to be outstanding and (b) Interest on the Notes or portion of Notes so called for redemption shall cease to accrue and, except as provided in Article 4 of the Indenture, such Notes shall cease
to be entitled to any benefit or security under the Indenture, and the Holders thereof shall have no right in respect of such Notes except the right to receive the Redemption Price thereof, together with accrued and unpaid Interest, if any, thereon.
On presentation and surrender of such Notes at a place of payment in said notice specified, the said Notes or the specified portions thereof shall be paid and redeemed by the Issuer at the Redemption Price, together with Interest accrued thereon, if
any, to, but excluding, the Redemption Date.
Upon presentation of any Note redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Issuer, a new Note or Notes, of authorized denominations, in principal amount equal to the unredeemed portion of the Notes so presented.
Prior to the applicable Redemption Date, the Issuer shall provide to the Trustee an Officers’ Certificate that shall set forth the
applicable Redemption Price and the calculation thereof in reasonable detail. The Trustee shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in acting upon the Issuer’s calculation
of the Redemption Price.
Section 3.04.
Sinking Fund.
There shall be no sinking fund provided for the Notes.
ARTICLE 4
P
ARTICULAR
C
OVENANTS
Section 4.01.
Aggregate Debt Test.
The General Partner will not, and will not permit any of its Subsidiaries to, incur any Debt
(including without limitation Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the application of the proceeds from such Debt on a pro forma basis, the aggregate principal amount of all outstanding Debt of the
General Partner and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) is greater than 60% of the sum of the following (without duplication):
(a) the Total Assets of the General Partner and its Subsidiaries as of the last day of the then most recently ended fiscal quarter; and
16
(b) the aggregate purchase price of any real estate assets or mortgages receivable acquired, and
the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the General Partner or any of its Subsidiaries since the
end of such fiscal quarter, including the proceeds obtained from the incurrence of such additional Debt.
For purposes of this Section 4.01, Debt will be
deemed to be incurred by the General Partner or any of its Subsidiaries whenever the General Partner or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof.
Section 4.02.
Debt Service Test.
The General Partner will not, and will not permit any of its Subsidiaries to, incur any Debt
(including without limitation Acquired Debt) if the ratio of Consolidated Income Available for Debt Service to Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.5:1 on a pro forma basis after giving effect to the incurrence of such Debt and the application of the proceeds from such Debt (determined on a consolidated basis in accordance
with GAAP), and calculated on the following assumptions:
(a) such Debt and any other Debt (including without limitation Acquired Debt)
incurred by the General Partner or any of its Subsidiaries since the first day of such four-quarter period had been incurred, and the application of the proceeds from such Debt (including to repay or retire other Debt) had occurred, on the first day
of such period;
(b) the repayment or retirement of any other Debt of the General Partner or any of its Subsidiaries since the first day
of such four-quarter period had occurred on the first day of such period (
provided
that, except to the extent set forth in clause (a) above or clause (c) below, in making this computation, the amount of Debt under any revolving
credit facility, line of credit or similar facility will be computed based upon the average daily balance of such Debt during such period); and
(c) in the case of any acquisition or disposition by the General Partner or any of its Subsidiaries of any asset or group of assets with a
Fair Market Value in excess of $1.0 million since the first day of such four-quarter period, whether by merger, stock purchase or sale or asset purchase or sale or otherwise, such acquisition or disposition 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.
17
If the Debt giving rise to the need to make the calculation described in this Section 4.02 or any
other Debt incurred after the first day of the relevant four-quarter period bears interest at a floating rate, then, for purposes of calculating the Annual Debt Service Charge, the interest rate on such Debt will be computed on a pro forma basis by
applying the average daily rate which would have been in effect during the entire four-quarter period to the greater of the amount of such Debt outstanding at the end of such period or the average amount of such Debt outstanding during such period.
For purposes of this Section 4.02, Debt will be deemed to be incurred by the General Partner or any of its Subsidiaries whenever the General Partner or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof.
Section 4.03.
Secured Debt Test.
The General Partner will not, and will not permit any of its Subsidiaries to, incur any Debt
(including without limitation Acquired Debt) secured by any Lien on any property or assets of the General Partner or any of its Subsidiaries, whether owned on the date of this Supplemental Indenture or subsequently acquired, if, immediately after
giving effect to the incurrence of such Debt and the application of the proceeds from such Debt on a pro forma basis, the aggregate principal amount (determined on a consolidated basis in accordance with GAAP) of all outstanding Debt of the General
Partner and its Subsidiaries which is secured by a Lien on any property or assets of the General Partner or any of its Subsidiaries is greater than 40% of the sum of (without duplication):
(a) the Total Assets of the General Partner and its Subsidiaries as of the last day of the then most recently ended fiscal quarter; and
(b) the aggregate purchase price of any real estate assets or mortgages receivable acquired, and the aggregate amount of any securities
offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the General Partner or any of its Subsidiaries since the end of such fiscal quarter, including
the proceeds obtained from the incurrence of such additional Debt.
For purposes of this Section 4.03, Debt will be deemed to be incurred
by the General Partner or any of its Subsidiaries whenever the General Partner or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof.
Section 4.04.
Maintenance of Total Unencumbered Assets.
The General Partner will not have at any time Total Unencumbered Assets of
less than 150% of the aggregate principal amount of all outstanding Unsecured Debt of the General Partner and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
18
ARTICLE 5
E
VENTS
OF
D
EFAULT
; R
EMEDIES
Section 5.01.
Events of Default.
In addition to the Events of Default set forth in Section 501 of the Indenture, each of
which shall apply to the Notes, each of the following shall constitute an Event of Default with respect to the Notes (for which the provisions set forth in Article 5 of the Indenture shall apply):
(a) failure on the part of either the Issuer or the General Partner to comply with its respective obligations under Article 7; and
(b) any guarantee by a Guarantor (excluding, in the case of a Subsidiary Guarantor, a Subsidiary Guarantor that is not also a Significant
Subsidiary) ceases for any reason to be, or is asserted in writing by us or such Guarantor not to be, in full force and effect and enforceable in accordance with its terms except to the extent contemplated by the Indenture and any such Guarantee.
ARTICLE 6
S
UPPLEMENTAL
I
NDENTURES
Section 6.01.
Supplemental Indentures with and without Consent of Noteholders.
Clauses (1) and (9) of Section 901
of the Indenture shall not apply with respect to the Notes. In addition, the Issuer and the General Partner, when authorized by resolutions of the Board of Directors of the General Partner and the General Partner on behalf of the Issuer, and the
Trustee may from time to time, and at any time, enter into an indenture or indentures supplemental to the Indenture and this Supplemental Indenture without the consent of any Holder of the Notes for either of the following purposes (in which case
the provisions of Article 9 of the Indenture shall apply:
(a) to cure any ambiguity, defect or inconsistency in the Indenture;
provided
that this action shall not adversely affect the interests of the Holders of the Notes in any respect; or
(b) to
supplement any of the provisions of the Indenture and this Supplemental Indenture to the extent necessary to permit or facilitate satisfaction and discharge, legal defeasance or covenant defeasance pursuant to Article 4 of the Indenture;
provided
that the action shall not adversely affect the interests of the Holders of the Notes in any respect.
ARTICLE 7
C
ONSOLIDATION
, M
ERGER
, S
ALE
, C
ONVEYANCE
AND
L
EASE
Section 7.01.
Issuer May Consolidate on Certain Terms.
Nothing contained in the Indenture or in the Notes shall prevent any
consolidation or
19
merger of the Issuer with or into any other Person or Persons (whether or not affiliated with the Issuer), or successive consolidations or mergers, or shall prevent any sale, 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 the following conditions are met:
(a) the Issuer shall be the continuing entity, or if other than the Issuer, the successor entity formed by or resulting from any consolidation
or merger or which shall have received the transfer of assets shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume payment of the principal
of, premium, if any, and Interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture;
(b) 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 occurred and be continuing; and
(c) either the Issuer or the successor Person, as the case may be,
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article 7 and that all conditions precedent herein provided for relating to such transaction have been complied with.
No such consolidation, merger, sale, conveyance, transfer or lease shall be permitted by this Section 7.01 unless prior thereto the General
Partner shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the Guarantors obligations hereunder shall remain in full force and effect thereafter.
Section 7.02.
General Partner May Consolidate on Certain Terms
. Nothing contained in the Indenture or in the Notes shall prevent
any consolidation or merger of the General Partner with or into any other Person or Persons (whether or not affiliated with the General Partner), or successive consolidations or mergers, or shall prevent any sale, conveyance, transfer or lease of
all or substantially all of the property of the General Partner to any other Person (whether or not affiliated with the General Partner);
provided
,
however
, that:
(a) the General Partner shall be the continuing entity, or the successor entity (if other than the General Partner) formed by or resulting
from any consolidation or merger or which shall have received the transfer of assets shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume the
obligations of the General Partner under the Guarantees and the due and punctual performance and observance of all of the covenants and conditions in the Indenture;
20
(b) 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
(c) either the
General Partner or the successor Person, as the case may be, shall have delivered to the Trustee an Officers’ Certificate, as the case may be, and an Opinion of Counsel, each stating that such consolidation, sale, merger, conveyance, transfer
or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article 7, that all conditions precedent herein provided for relating to such transaction have been complied
with, and each stating that the Guarantors obligations hereunder shall remain in full force and effect thereafter.
ARTICLE 8
F
UTURE
G
UARANTEES
Section 8.01.
Guarantees
. Article 15 of the Indenture shall apply to the Notes. In addition, from and after the Issue Date, the
Issuer or the General Partner, as applicable, shall cause any Subsidiary of the Issuer or the General Partner that guarantees payment of more than $35,000,000 of the Issuer’s indebtedness for money borrowed or more than $35,000,000 of the
indebtedness for money borrowed of the Issuer’s or the General Partner’s other Subsidiaries to execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary shall guarantee payment of the Notes, whereupon
such Subsidiary shall become a Guarantor for all purposes under the Indenture. The Issuer or the General Partner, as applicable, shall cause each Subsidiary that is required to become a Guarantor pursuant to the immediately preceding sentence to
promptly execute and deliver to the Trustee a supplemental indenture substantially in the form set forth in
Exhibit B
to this Supplemental Indenture, or otherwise in form and substance reasonably satisfactory to the Trustee, evidencing its
Guarantee on substantially the terms set forth in Article 15 of the Indenture. Concurrently therewith, the Issuer or the General Partner, as applicable, shall deliver to the Trustee an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee to the effect that such supplemental indenture has been duly authorized, executed and delivered by such Subsidiary and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereafter in effect affecting creditors’ rights or remedies generally and to general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or at equity, such supplemental indenture is a valid and binding agreement of such subsidiary, enforceable against such subsidiary in accordance with its terms.
21
Section 8.02
. Release of Guarantee.
In addition to the circumstances under which a
Guarantor may be released as set forth in Section 1505 of the Indenture, and notwithstanding the provisions of Section 1505 of the Indenture, a Subsidiary Guarantor shall be automatically and unconditionally released from its obligations
under the Indenture and this Supplemental Indenture:
(a) upon the sale or other disposition of such Guarantor;
(b) upon the sale or disposition of all or substantially all of the assets of such Guarantor;
provided
,
however
, that in either case, (1) such sale or other disposition is made to a Person other than the General Partner or any of its
Subsidiaries and (2) such sale or disposition is otherwise permitted by the Indenture. Upon any such occurrence specified in this Section 8.02, at the Issuer’s request, and upon delivery to the Trustee of an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent under the Indenture relating to such release have been complied with, the Trustee shall execute any documents reasonably requested by the Issuer evidencing such release.
Section 8.03.
Notices
. Notice to any Guarantor shall be sufficient if addressed to such Guarantor care of the Issuer at the
address, place and manner provided in Section 105 of the Indenture.
ARTICLE 9
M
ISCELLANEOUS
P
ROVISIONS
Section 9.01
. Continued Effect.
Except as expressly supplemented and amended by this Supplemental Indenture, the Indenture shall
continue in full force and effect in accordance with the provisions thereof, and the Indenture (as further supplemented and amended by this Supplemental Indenture) is in all respects hereby ratified and confirmed. This Supplemental Indenture and all
its provisions shall be deemed a part of the Indenture in the manner and to the extent herein and therein provided.
Section 9.02
.
Payments.
If any Interest Payment Date or Maturity Date or Redemption Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable from and after such Interest Payment Date or Maturity Date or Redemption Date, as the case may be, to such next Business Day.
Section 9.03.
Governing Law
. The Indenture, the Notes and the Guarantees shall be governed by, and construed in accordance with,
the laws of the State of New York.
22
Section 9.04.
No Security Interest Created
. Nothing in the Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction in which property of the Issuer or its subsidiaries
is located.
Section 9.05.
Table of Contents, Headings, etc
. The table of contents and the titles and headings of the Articles
and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 9.06.
Execution in Counterparts
. This Supplemental Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 9.07.
Severability
. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then, to the maximum extent permitted by applicable law, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
U.S. Bank National Association hereby accepts the trusts in this
Supplemental Indenture declared and provided, upon the terms and conditions herein above set forth.
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed.
[
Signature pages follow
]
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COLUMBIA PROPERTY TRUST, INC.
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By:
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/s/ James A. Fleming
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Name:
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James A. Fleming
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Title:
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Executive Vice President and Chief Financial Officer
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[Signature page to
Supplemental Indenture]
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COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
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By:
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Columbia Property Trust, Inc.
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Its:
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General Partner
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By:
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/s/ James A. Fleming
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Name:
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James A. Fleming
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Title:
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Executive Vice President and Chief Financial Officer
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[Signature page to
Supplemental Indenture]
Confirmed and accepted as of the date first above written:
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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/s/ Richard Prokosch
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Name:
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Richard Prokosch
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Title:
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Vice President
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[Signature page to
Supplemental Indenture]
EXHIBIT A
[FACE OF NOTE]
No. [ ]
COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
4.150% SENIOR NOTES DUE 2025
CUSIP: 19828J AA6
$
Columbia Property Trust Operating Partnership, L.P., a Delaware limited partnership (the “Issuer”, which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to pay to , or its registered assigns, the principal
sum of DOLLARS ($ ) [or such other amount as indicated on the Schedule of Exchange of Notes attached hereto] on April 1,
2025.
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Interest Rate:
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4.150% per annum
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Interest Payment Dates:
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April 1 and October 1, commencing October 1, 2015
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Regular Record Dates:
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March 15 and September 15
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Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will
for all purposes have the same effect as if set forth at this place.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
Dated:
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COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
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By:
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Columbia Property Trust, Inc., as its sole general partner
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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I, [name], [title] of Columbia Property Trust, Inc., do hereby certify that [name] is on the date hereof
the duly elected or appointed, qualified and acting [title] of Columbia Property Trust, Inc., and that [name] is on the date hereof the duly elected or appointed, qualified and acting [title] of Columbia Property Trust, Inc., and that the signatures
set forth above are the genuine signatures of such officers, respectively.
A-2
(Form of Trustee’s Certificate of Authentication)
This is one of the 4.150% Senior Notes due 2025 described in the Indenture referred to in this Note.
Dated:
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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Authorized Signatory
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A-3
[REVERSE SIDE OF NOTE]
COLUMBIA PROPERTY TRUST OPERATING PARTNERSHIP, L.P.
4.150% SENIOR NOTES DUE 2025
Principal and Interest
The Issuer promises to pay the principal of this Note on April 1, 2025.
The Issuer promises to pay interest on the principal amount of this Note on each interest payment date, as set forth on the face of this Note,
at the rate of 4.150% per annum (subject to adjustment as provided below).
Interest will be payable semiannually (to the holders of
record of the Notes at the close of business on the March 15 or September 15 immediately preceding the interest payment date) on each interest payment date, commencing October 1, 2015. Interest on the Notes shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Interest on this Note will accrue from the most recent date to which interest
has been paid on this Note [(or, if there is no existing default in the payment of interest and if this Note is authenticated between a regular record date and the next interest payment date, from such interest payment date)]
1
or, if no interest has been paid, from [the Issue Date]
2
.
Interest on any Global Note shall be paid by wire transfer of immediately available funds to the account of the Depositary or its nominee.
Payment of the principal of Notes not represented by a Global Note shall be made at the office or agency designated by the Issuer for such purpose. Interest on Notes not represented by a Global Note shall be paid (i) to Holders having an
aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes and (ii) to Holders having an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application by a
Holder to the Security Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder
notifies, in writing, the Security Registrar to the contrary.
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For additional Notes, should be the date of their original issue.
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A-4
Interest on any overdue installments of principal of and (to the extent that payment of such
Interest is lawful) Interest on the Notes shall accrue and be payable at the same rate as Interest is otherwise payable on the Notes. Interest not paid when due and any Interest on principal, premium or Interest not paid when due will be paid to the
Persons that are Holders on a special record date, which will be the 15th day preceding the date fixed by the Issuer for the payment of such Interest, whether or not such day is a Business Day. At least 15 days before a special record date, the
Issuer will send to each Holder and to the Trustee a notice that sets forth the special record date, the payment date and the amount of Interest to be paid.
Indentures; Note Guarantee
This is one of the Notes issued under an Indenture dated as of March 12, 2015, as amended by the First Supplemental Indenture thereto
dated as of March 12, 2015 (as so amended and as otherwise amended from time to time, the “Indenture”), among the Issuer, the Guarantor party thereto and U.S. Bank National Association, as Trustee. Capitalized terms used herein are
used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture will control.
The Notes are general unsecured obligations of the Issuer. The Indenture limits the original
aggregate principal amount of the Notes to $350,000,000, but additional Notes may be issued pursuant to the Indenture, and the originally issued Notes and all such additional Notes vote together for all purposes as a single class. This Note is
guaranteed, as set forth in the Indenture.
Registered Form; Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of $2,000 principal amount and any multiple of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the
Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will not be required to issue, register the transfer of or exchange any Note or certain portions of a Note.
A-5
Redemption and Repurchase; Discharge Prior to Redemption or Maturity
The Issuer shall have the right to redeem the Notes, in whole at any time and from time to time in part, at the Redemption Price and on the
terms and conditions set forth in the Indenture.
The Notes are not subject to redemption through the operation of any sinking fund.
Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Issuer deposits with the Trustee money or Government Obligations for the payment of principal and interest on the Notes to redemption or maturity, as the case may be.
Defaults and Remedies
If
an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Issuer occurs and is continuing, then the principal amount of and Interest accrued and unpaid on all the Notes shall be immediately due and payable without any declaration or other action on the part of the Trustee or any Holder of
Notes.
Amendment and Waiver
The Indenture contains provisions permitting the Issuer, the General Partner, the Subsidiary Guarantors and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the Holders of the Notes, subject to certain exceptions.
Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate principal amount of the Notes at the time
outstanding may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default, subject to the exceptions set forth in the Indenture.
A-6
No Recourse
Except as expressly provided in the Indenture, no recourse for the payment of the principal of (including the Redemption Price upon redemption
pursuant to the Indenture) or Interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or any Guarantor in the Indenture or any
supplemental indenture or in this Note, or because of the creation of any indebtedness represented thereby, or in the Guarantees, shall be had against any incorporator, stockholder, trustee, partner, member, manager, employee, agent, officer,
director or subsidiary, as such, past, present or future, of the Issuer or any Guarantor or any of the Issuer’s or Guarantor’s respective Subsidiaries or of any successor thereto, either directly or through the Issuer or any Guarantor or
any of the Issuer’s or any Guarantor’s respective Subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of the Indenture and the issue of this Note.
Authentication
This Note
is not valid until the Trustee (or Authenticating Agent) signs the certificate of authentication on the other side of this Note.
Governing Law
The Notes
shall be governed by, and construed in accordance with, the laws of the State of New York.
Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).
Other
The Issuer will
furnish a copy of the Indenture to any Holder upon written request and without charge.
A-7
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and
address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the Issuer with full power of substitution in the premises.
Signature Guarantee:
3
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By
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To be executed by an executive officer
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3
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Signatures must be guaranteed by an “
eligible guarantor institution
” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer
Association Medallion Program (“
STAMP
”) or such other “
signature guarantee program
” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
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A-8
SCHEDULE OF EXCHANGES OF NOTES
4
The following exchanges of a part of this Global Note for Physical Notes or a part of another Global Note have been made:
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Date of Exchange
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Amount of decrease
in principal amount
of this
Global Note
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Amount of increase
in principal amount
of this Global Note
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Principal amount of
this Global Note
following
such
decrease (or
increase)
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Signature of
authorized officer of
Trustee
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A-9
EXHIBIT B
SUPPLEMENTAL INDENTURE
dated as of ,
among
COLUMBIA PROPERTY TRUST
OPERATING PARTNERSHIP, L.P.,
COLUMBIA PROPERTY TRUST, INC.
and
U.S. BANK NATIONAL
ASSOCIATION,
as Trustee
4.150% Senior
Notes due 2025
THIS
[ ] SUPPLEMENTAL INDENTURE (this “
Supplemental Indenture
”), entered into as of
, , among Columbia Property Trust Operating Partnership, L.P., a Delaware limited partnership (the “
Issuer
”),
the General Partner (defined below), [insert each Guarantor executing this Supplemental Indenture and its jurisdiction of incorporation] (each an “
Undersigned
”) and U.S. Bank National Association, as trustee (the
“
Trustee
”).
RECITALS
WHEREAS, the Issuer, Columbia Property Trust, Inc., a Maryland corporation (the “
General Partner
”) and the Trustee entered
into the Indenture (the “
Base Indenture
”), as supplemented by the First Supplemental Indenture (the “
Supplemental Indenture
”), each dated as of March 12, 2015 (as so supplemented and as otherwise supplemented
from time to time, the “
Indenture
”), relating to the Issuer’s 4.150% Senior Notes due 2025 (the “
Notes
”);
WHEREAS, pursuant to Section 8.01 of the Supplemental Indenture, the Issuer and the General Partner agree to cause subsidiaries to
provide Guaranties in circumstances specified therein;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties to this
Supplemental Indenture hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used
as defined in the Indenture.
Section 2. Each Undersigned, by its execution of this Supplemental Indenture, agrees to be a Guarantor
under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including, but not limited to, Article 15 of the Base Indenture.
Section 3. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
Section 4. This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.
Section 5. This Supplemental Indenture is an amendment supplemental to the Indenture and the Indenture and this Supplemental
Indenture will henceforth be read together.
B-1
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
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Columbia Property Trust Operating Partnership, L.P., as Issuer
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By:
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Name:
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Title:
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Columbia Property Trust, Inc., as General Partner
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By:
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Name:
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Title:
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[GUARANTOR]
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By:
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Name:
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Title:
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U.S. Bank National Association, as Trustee
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By:
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Name:
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Title:
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B-2
