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As filed with the Securities and Exchange Commission on November 25, 1998
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LNR PROPERTY CORPORATION
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN ITS CHARTER)
DELAWARE 65-0777234
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
760 NORTHWEST 107TH AVENUE
MIAMI, FLORIDA 33172
(305) 485-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEVEN J. SAIONTZ
CHIEF EXECUTIVE OFFICER
LNR PROPERTY CORPORATION
760 NORTHWEST 107TH AVENUE
MIAMI, FLORIDA 33172
(305) 485-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
DAVID W. BERNSTEIN, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: | |
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM
OFFERING PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, Preferred Stock,
Depositary Shares, Debt Securities,
Warrants (1) and Guarantees.......... (3) (3) $400,000,000(2) $111,200
===================================================================================================================
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(1) Includes shares of Common Stock which may be issued upon conversion of
Preferred Stock or Debt Securities, or exercise of Warrants, which are
being registered.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Not applicable, as provided in General Instruction D to Form S-3.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE AMENDED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 25, 1998
PROSPECTUS
LNR PROPERTY CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
AND GUARANTEES
We may from time to time offer our common stock, preferred stock (which
we may issue in one or more series), depositary shares representing shares of
preferred stock, debt securities (which we may issue in one or more series) or
warrants entitling the holders to purchase common stock, preferred stock,
depositary shares or debt securities, at an aggregate initial offering price
which will not exceed $400,000,000. We may also issue guarantees of the
obligations of our subsidiaries or others under securities they issue. We will
determine when we sell securities, the amounts of securities we will sell and
the prices and other terms on which we will sell them. We may sell securities to
or through underwriters, through agents or directly to purchasers.
We will describe in a prospectus supplement, which we will deliver with
this prospectus, the terms of particular securities which we offer in the
future. We may describe the terms of those securities in a term sheet which will
precede the prospectus supplement.
In each prospectus supplement we will include the following
information:
- The names of the underwriters or agents, if any, through which
we will sell the securities;
- The proposed amounts of securities, if any, which the
underwriters will purchase;
- The compensation, if any, of those underwriters or agents;
- The initial public offering price of the securities;
- Information about securities exchanges or automated quotation
systems on which the securities will be listed or traded; and
- Any other material information about the offering and sale of
the securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
November , 1998
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TABLE OF CONTENTS
FORWARD-LOOKING INFORMATION....................................................2
THE COMPANY....................................................................3
USE OF PROCEEDS................................................................3
RATIO OF EARNINGS TO FIXED CHARGES.............................................4
DESCRIPTION OF DEBT SECURITIES.................................................4
DESCRIPTION OF WARRANTS........................................................8
DESCRIPTION OF COMMON STOCK AND PREFERRED SECURITIES...........................8
DESCRIPTION OF DEPOSITARY SHARES..............................................10
DESCRIPTION OF GUARANTEES.....................................................11
LEGAL MATTERS.................................................................11
EXPERTS.......................................................................11
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................12
INFORMATION WE FILE...........................................................12
FORWARD-LOOKING INFORMATION
We make forward-looking statements about our business in our filings
with the Securities and Exchange Commission. Although we believe the
expectations reflected in our forward-looking statements are reasonable, it is
possible they will prove not to have been correct, particularly given the
cyclical nature of the commercial real estate market, in addition to the
cyclical nature of the commercial real estate business. Among the factors which
create uncertainties about our future performance are changes in interest rates,
changes in demand for commercial real estate nationally, in areas in which we
own properties, or in areas in which properties securing mortgages we own are
located, changes in the demand for real estate related securities, and national
or regional business conditions which affect the ability of mortgage obligors to
pay principal or interest when it is due.
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THE COMPANY
We are a real estate investment and management company. We structure
and make real estate related investments and, through our expertise in
developing and managing properties, we seek to enhance the value of those
investments. We and our predecessor have been engaged in the development,
ownership and management of commercial and multi-family residential properties
since 1969.
Our activities primarily consist of:
- Developing and managing commercial and multi-family
residential properties;
- Acquiring, managing and repositioning commercial and
multi-family residential real estate loans and properties;
- Acquiring (often in partnership with financial institutions
and real estate funds) and managing portfolios of real estate
assets;
- Investing in unrated and non-investment grade rated commercial
mortgage-backed securities ("CMBS") as to which we have the
right to be special servicer (i.e., to oversee workouts of
underperforming and nonperforming loans); and
- Making high yielding real estate related loans and equity
investments.
We adjust our investment focus from time to time to adapt to various
phases of the real estate cycle.
Lennar Corporation formed our company in June 1997 to separate Lennar's
real estate investment and management business from its homebuilding business.
On October 31, 1997, Lennar distributed our stock to Lennar's stockholders in a
tax-free spin-off. We treat activities conducted by Lennar, as our predecessor,
of the type we currently conduct as our own historical activities.
USE OF PROCEEDS
Except as may be set forth in a particular prospectus supplement, we
will add the net proceeds from sales of securities to our general corporate
funds, which we may use to repay indebtedness, for acquisitions or for other
general corporate purposes.
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RATIO OF EARNINGS TO FIXED CHARGES
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Years Ended November 30,
Nine Months Ended -----------------------------------------------
August 31, 1998 1997 1996 1995 1994 1993
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Ratio of earnings to fixed 3.0x 3.6x 4.8x 5.5x 10.4x 9.6x
charges(1)
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(1) For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before income
taxes and cumulative effect of changes in accounting principles plus
"fixed charges" and certain other adjustments. "Fixed charges" consist
of interest incurred on all indebtedness related to continuing
operations (we did not have any material original issue discount,
interest within rental expense or capitalized lease obligations during
the periods presented).
There was no preferred stock outstanding for any of the periods shown
above. Accordingly, the ratio of earnings to combined fixed charges and
preferred stock dividends is identical to the ratio of earnings to fixed
charges.
DESCRIPTION OF DEBT SECURITIES
We will issue the debt securities under an indenture dated as of
December ___, 1998 with The Bank of New York, as trustee, which we may
supplement from time to time. The following paragraphs describe the provisions
of the indenture. We are filing the indenture as an exhibit to the registration
statement of which this prospectus is a part and you may inspect it at the
office of the trustee.
GENERAL
The debt securities will be direct, unsecured obligations of our
company and may be either senior debt securities or subordinated debt
securities. The indenture does not limit the principal amount of debt securities
that we may issue. We may issue debt securities in one or more series. A
supplemental indenture will set forth specific terms of each series of debt
securities. There will be prospectus supplements relating to particular series
of debt securities. Each prospectus supplement will describe:
- - the title of the debt securities and whether the debt securities are
senior or subordinated debt securities;
- - any limit upon the aggregate principal amount of a series of debt
securities which we may issue;
- - the date or dates on which principal of the debt securities will be
payable and the amount of principal which will be payable;
- - the rate or rates (which may be fixed or variable) at which the debt
securities will bear interest, if any, as well as the dates from which
interest will accrue, the dates on which interest will be payable, the
persons to whom interest will be payable, if other than the registered
holders on the record date, and the record date for the interest
payable on any payment date;
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- - the currency or currencies in which principal, premium, if any, and
interest, if any, will be paid;
- - the place or places where principal, premium, if any, and interest, if
any, on the debt securities will be payable and where debt securities
which are in registered form can be presented for registration of
transfer or exchange;
- - any provisions regarding our right to prepay debt securities or of
holders to require us to prepay debt securities;
- - the right, if any, of holders of the debt securities to convert them
into common stock or other securities, including any provisions
intended to prevent dilution of the conversion rights;
- - any provisions requiring or permitting us to make payments to a sinking
fund which will be used to redeem debt securities or a purchase fund
which will be used to purchase debt securities;
- - any index or formula used to determine the required payments of
principal, premium, if any, or interest, if any;
- - the percentage of the principal amount of the debt securities which is
payable if maturity of the debt securities is accelerated because of a
default;
- - any special or modified events of default or covenants with respect to
the debt securities; and
- - any other material terms of the debt securities.
The indenture does not contain any restrictions on the payment of
dividends or the repurchase of our securities or any financial covenants.
However, supplemental indentures relating to particular series of debt
securities may contain provisions of that type.
We may issue debt securities at a discount from their stated principal
amount. A prospectus supplement may describe federal income tax considerations
and other special considerations applicable to a debt security issued with
original issue discount.
If the principal of, premium, if any, or interest with regard to any
series of debt securities is payable in a foreign currency, we will describe in
the prospectus supplement relating to those debt securities any restrictions on
currency conversions, tax considerations or other material restrictions with
respect to that issue of debt securities.
FORM OF DEBT SECURITIES
We may issue debt securities in certificated or uncertificated form, in
registered form with or without coupons or in bearer form with coupons, if
applicable.
We may issue debt securities of a series in the form of one or more
global certificates evidencing all or a portion of the aggregate principal
amount of the debt securities of that series. We may deposit the global
certificates with depositaries, and the certificates may be subject to
restrictions upon transfer or upon exchange for debt securities in individually
certificated form.
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EVENTS OF DEFAULT AND REMEDIES
An event of default with respect to each series of debt securities will
include:
- our default in payment of the principal of or premium, if any,
on any debt securities of that series;
- our default for a period specified in a supplemental
indenture, which may be no period, in payment of any
installment of interest, if any, on any debt securities of
that series;
- our default for a period specified in the supplemental
indenture after notice in the observance or performance of any
other covenants in the indenture; and
- certain events involving our bankruptcy, insolvency or
reorganization.
Supplemental indentures relating to particular series of debt securities may
include other events of default.
The indenture provides that the trustee may withhold notice to the
holders of any series of debt securities of any default (except a default in
payment of principal, premium, if any, or interest, if any) if the trustee
considers it in the interest of the holders of the series to do so.
The indenture provides that if any event of default has occurred and is
continuing, the trustee or the holders of not less than 25% in principal amount
of the series of debt securities then outstanding may declare the principal of
and accrued interest, if any, on all the series of debt securities to be due and
payable immediately. However, if we cure all defaults (except the failure to pay
principal, premium or interest which became due solely because of the
acceleration) and certain other conditions are met, that declaration may be
annulled and past defaults may be waived by the holders of a majority in
principal amount of the series of debt securities then outstanding.
The holders of a majority in outstanding principal amount of a series
of debt securities will have the right to direct the time, method and place of
conducting proceedings for any remedy available to the trustee, subject to
certain limitations specified in the indenture.
A prospectus supplement will describe any additional or different
events of default which apply to any series of debt securities.
MODIFICATION OF THE INDENTURE
We and the trustee may:
- without the consent of holders of debt securities, modify the
indenture to cure errors or clarify ambiguities;
- with the consent of the holders of not less than a majority in
principal amount of the debt securities which are outstanding
under the indenture, modify the indenture or the rights of the
holders of the debt securities generally; and
- with the consent of the holders of not less than a majority in
outstanding principal amount of any series of debt securities,
modify any supplemental indenture relating solely to that
series of debt securities or the rights of the holders of that
series of debt securities.
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However, we may not:
- extend the fixed maturity of any debt securities, reduce the
rate or extend the time for payment of interest, if any, on
any debt securities, reduce the principal amount of any debt
securities or the premium, if any, on any debt securities,
impair or affect the right of a holder to institute suit for
the payment of principal, premium, if any, or interest, if
any, with regard to any debt securities, change the currency
in which any debt securities are payable or impair the right,
if any, to convert any debt securities into common stock or
any of our other securities, without the consent of each
holder of debt securities who will be affected; or
- reduce the percentage of holders of debt securities required
to consent to an amendment, supplement or waiver, without the
consent of the holders of all the then outstanding debt
securities or outstanding debt securities of the series which
will be affected.
MERGERS AND OTHER TRANSACTIONS
We may not consolidate with or merge into any other entity, or transfer
or lease our properties and assets substantially as an entirety to another
person, unless (i) the entity formed by the consolidation or into which we are
merged, or which acquires or leases our properties and assets substantially as
an entirety, assumes by a supplemental indenture all our obligations with regard
to outstanding debt securities and our other covenants under the indenture, and
(ii) with regard to each series of debt securities, immediately after giving
effect to the transaction, no event of default, with respect to that series of
debt securities, and no event which would become an event of default, will have
occurred and be continuing.
CONCERNING THE TRUSTEE
The Bank of New York, the trustee under the indenture, provides, and
may continue to provide, loans and banking services to us in the ordinary course
of its business.
GOVERNING LAW
The indenture, each supplemental indenture, and the debt securities
issued under them will be governed by, and construed in accordance with, the
laws of New York State.
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DESCRIPTION OF WARRANTS
Each issue of warrants will be the subject of a warrant agreement which
will contain the terms of the warrants. We will distribute a prospectus
supplement with regard to each issue of warrants. Each prospectus supplement
will describe, as to the warrants to which it relates:
- the securities which may be purchased by exercising the
warrants (which may be common stock, preferred stock, debt
securities, depositary shares or units consisting of two or
more of those types of securities);
- the exercise price of the warrants (which may be wholly or
partly payable in cash or wholly or partly payable with other
types of consideration);
- the period during which the warrants may be exercised;
- any provision adjusting the securities which may be purchased
on exercise of the warrants and the exercise price of the
warrants in order to prevent dilution or otherwise;
- the place or places where warrants can be presented for
exercise or for registration of transfer or exchange; and
- any other material terms of the warrants.
DESCRIPTION OF COMMON STOCK AND PREFERRED SECURITIES
Our authorized capital stock consists of 150,000,000 shares of common
stock, $0.10 par value, 40,000,000 shares of class B common stock, $0.10 par
value, and 500,000 shares of preferred stock, $10.00 par value. At October 31,
1998, 24,846,000 shares of common stock, 10,754,000 shares of class B common
stock and no shares of preferred stock were outstanding.
PREFERRED STOCK
We may issue preferred stock in series with any rights and preferences
which may be authorized by our board of directors. We will distribute a
prospectus supplement with regard to each series of preferred stock. Each
prospectus supplement will describe, as to the preferred stock to which it
relates:
- the title of the series;
- any limit upon the number of shares of the series which may be
issued;
- the preference, if any, to which holders of the series will be
entitled upon our liquidation;
- the date or dates on which we will be required or permitted to
redeem shares of the series;
- the terms, if any, on which we or holders of the series will
have the option to cause shares of the series to be redeemed;
- the voting rights of the holders of the preferred stock;
- the dividends, if any, which will be payable with regard to
the series (which may be fixed dividends or participating
dividends and may be cumulative or non-cumulative);
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- the right, if any, of holders of the series to convert them
into another class of our stock or securities, including
provisions intended to prevent dilution of those conversion
rights;
- any provisions by which we will be required or permitted to
make payments to a sinking fund which will be used to redeem
shares of the series or a purchase fund which will be used to
purchase shares of the series; and
- any other material terms of the series.
Holders of shares of preferred stock will not have preemptive rights.
COMMON STOCK
All the outstanding shares of our common stock are fully paid and
nonassessable and entitled to participate equally and ratably in dividends and
in distributions available for the common stock on liquidation. Each share is
entitled to one vote for the election of directors and upon all other matters on
which the common stockholders vote. Holders of common stock are not entitled to
cumulative votes in the election of our directors.
The transfer agent and registrar for the common stock is Boston
EquiServe L.P., Canton, Massachusetts.
CLASS B COMMON STOCK
Our class B common stock is identical in every respect with our common
stock, except that (a) each share of class B common stock is entitled to ten
votes on each matter submitted to the vote of the common stockholders, while
each share of common stock is entitled to only one vote, (b) the cash
dividends, if any, paid with regard to the class B common stock in a year cannot
be more than 90% of the cash dividends, if any, paid with regard to the common
stock in that year, (c) a holder cannot transfer class B common stock, except to
a limited group of Permitted Transferees (primarily close relatives of the class
B stockholder, fiduciaries for the class B stockholder or for close relatives,
and entities of which the class B stockholder or close relatives are majority
owners), (d) class B common stock may at any time be converted into common
stock, but common stock may not be converted into class B common stock, (e)
amendments to provisions of our Certificate of Incorporation relating to the
common stock or the class B common stock require the approval of a majority of
the shares of common stock which are voted with regard to them (as well as
approval of a majority in voting power of all the outstanding common stock and
class B common stock combined), and (f) under Delaware law, certain matters
affecting the rights of holders of class B common stock may require approval of
the holders of the class B common stock voting as a separate class.
Leonard Miller, a member of our Board, currently owns, through two
limited partnerships of which a corporation wholly-owned by him is the sole
general partner, 9,897,930 shares of class B common stock, which is 92.0% of the
outstanding class B common stock and 27.8% of the outstanding common stock of
both classes. Mr. Miller's class B common stock gives him 74.8% of the total
votes which can be cast by the holders of both classes of common stock. Even if
Mr. Miller converted 5,961,315 shares of class B common stock into common stock
and sold that common stock, thereby reducing his holdings to 11.1% of the total
common stock of both classes, Mr. Miller would be entitled to cast more than 50%
of the votes. Mr. Miller has no current intention to convert any class B common
stock into common stock, or to sell any common stock, although, unless otherwise
stated in a particular prospectus supplement, he would be free to do so at any
time.
The existence of class B common stock, which has substantially greater
voting rights than the common stock, probably would discourage non-negotiated
tender offers and other types of non-negotiated
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takeovers, if any were contemplated. Mr. Miller's ownership of class B common
stock would make it impossible for anyone to acquire voting control of us as
long as Mr. Miller's class B common stock represents at least 9.1% of the
combined common stock of both classes and the total outstanding class B common
stock is at least 10% of the combined common stock of both classes (if at any
time the outstanding shares of class B common stock are less than 10% of the
outstanding shares of both classes of common stock taken together, the class B
common stock will automatically be converted into common stock).
DESCRIPTION OF DEPOSITARY SHARES
We may issue depositary receipts representing interests in shares of
particular series of preferred stock which are called depositary shares. We will
deposit the preferred stock of a series which is the subject of depositary
shares with a depositary, which will hold that preferred stock for the benefit
of the holders of the depositary shares, in accordance with a deposit agreement
between the depositary and us. The holders of depositary shares will be entitled
to all the rights and preferences of the preferred stock to which the depositary
shares relate, including dividend, voting, conversion, redemption and
liquidation rights, to the extent of their interests in that preferred stock.
While the deposit agreement relating to a particular series of
preferred stock may have provisions applicable solely to that series of
preferred stock, all deposit agreements relating to preferred stock we issue
will include the following provisions:
Dividends and Other Distributions. Each time we pay a cash dividend or
make any other type of cash distribution with regard to preferred stock of a
series, the depositary will distribute to the holder of record of each
depositary share relating to that series of preferred stock an amount equal to
the dividend or other distribution per depositary share the depository receives.
If there is a distribution of property other than cash, the depositary either
will distribute the property to the holders of depositary shares in proportion
to the depositary shares held by each of them, or the depositary will, if we
approve, sell the property and distribute the net proceeds to the holders of the
depositary shares in proportion to the depositary shares held by them.
Withdrawal of Preferred Stock. A holder of depositary shares will be
entitled to receive, upon surrender of depositary receipts representing
depositary shares, the number of whole or fractional shares of the applicable
series of preferred stock, and any money or other property, to which the
depositary shares relate.
Redemption of Depositary Shares. Whenever we redeem shares of preferred
stock held by a depositary, the depositary will be required to redeem, on the
same redemption date, depositary shares constituting, in total, the number of
shares of preferred stock held by the depositary which we redeem, subject to the
depositary's receiving the redemption price of those shares of preferred stock.
If fewer than all the depositary shares relating to a series are to be redeemed,
the depositary shares to be redeemed will be selected by lot or by another
method we determine to be equitable.
Voting. Any time we send a notice of meeting or other materials
relating to a meeting to the holders of a series of preferred stock to which
depositary shares relate, we will provide the depositary with sufficient copies
of those materials so they can be sent to all holders of record of the
applicable depositary shares, and the depositary will send those materials to
the holders of record of the depositary shares on the record date for the
meeting. The depositary will solicit voting instructions from holders of
depositary shares and will vote or not vote the preferred stock to which the
depositary shares relate in accordance with those instructions.
Liquidation Preference. Upon our liquidation, dissolution or winding
up, the holder of each depositary share will be entitled to, what the holder of
the depositary share would have received if the
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holder had owned the number of shares (or fraction of a share) of preferred
stock which is represented by the depositary share.
Conversion. If shares of a series of preferred stock are convertible
into common stock or other of our securities or property, holders of depositary
shares relating to that series of preferred stock will, if they surrender
depositary receipts representing depositary shares and appropriate instructions
to convert them, receive the shares of common stock or other securities or
property into which the number of shares (or fractions of shares) of preferred
stock to which the depositary shares relate could at the time be converted.
Amendment and Termination of a Deposit Agreement. We and the depositary
may amend a deposit agreement, except that an amendment which materially and
adversely affects the rights of holders of depositary shares, or would be
materially and adversely inconsistent with the rights granted to the holders of
the preferred stock to which they relate, must be approved by holders of at
least two-thirds of the outstanding depositary shares. No amendment will impair
the right of a holder of depositary shares to surrender the depositary receipts
evidencing those depositary shares and receive the preferred stock to which they
relate, except as required to comply with law. We may terminate a deposit
agreement with the consent of holders of a majority of the depositary shares to
which it relates. Upon termination of a deposit agreement, the depositary will
make the whole or fractional shares of preferred stock to which the depositary
shares issued under the deposit agreement relate available to the holders of
those depositary shares. A deposit agreement will automatically terminate if:
- all outstanding depositary shares to which it relates have
been redeemed or converted or
- the depositary has made a final distribution to the holders of
the depositary shares issued under the deposit agreement upon
our liquidation, dissolution or winding up.
Miscellaneous. There will be provisions (i) requiring the depositary to
forward to holders of record of depositary shares any reports or communications
from us which the depositary receives with respect to the preferred stock to
which the depositary shares relate, (ii) regarding compensation of the
depositary, (iii) regarding resignation of the depositary, (iv) limiting our
liability and the liability of the depositary under the deposit agreement
(usually to failure to act in good faith, gross negligence or willful
misconduct) and (v) indemnifying the depositary against certain possible
liabilities.
DESCRIPTION OF GUARANTEES
We may guarantee debt securities, preferred stock or other securities
issued by our subsidiaries or others. Our guarantee may be total or may be
limited to particular amounts or to particular obligations under the guaranteed
securities. If the issuance of the guaranteed securities must be registered
under the Securities Act of 1933, as amended, the prospectus relating to the
guaranteed securities will also constitute a prospectus supplement regarding our
guarantee. That prospectus/prospectus supplement will include a description of
the nature and the extent of our guarantee.
LEGAL MATTERS
Rogers & Wells LLP, 200 Park Avenue, New York, New York 10166, will
pass upon the validity of the securities we are offering by this prospectus. If
the validity of any securities is also passed upon by counsel for the
underwriters of an offering of those securities, that counsel will be named in
the prospectus supplement relating to that offering.
EXPERTS
Deloitte & Touche, LLP, independent auditors, have audited our
consolidated financial statements and the related financial statement schedules
incorporated by reference into this Prospectus and the registration statement of
which it is a part from our Annual Report on Form 10-K for the fiscal
11
<PAGE> 13
year ended November 30, 1997. Deloitte & Touche's reports are incorporated by
reference in this Prospectus in reliance upon their reports given upon their
authority as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are incorporating by reference in this Prospectus the following
documents which we have previously filed with the Securities and Exchange
Commission under the File Number 1-13223:
(a) our Annual Report on Form 10-K for the fiscal year ended
November 30, 1997;
(b) our Quarterly Reports on Form 10-Q for the fiscal quarters
ended February 28, 1998, May 31, 1998 and August 31, 1998;
(c) our Current Reports on Form 8-K and 8-K/A filed May 18,
1998 and July 14, 1998;
(d) our definitive proxy statement filed March 9, 1998; and
(e) the description of our common stock contained in our
registration statement under Section 12 of the Securities Exchange Act
of 1934, as amended, as that description has been altered by amendment
or reports filed for the purpose of updating that description.
Whenever after the date of this prospectus we file reports or documents
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, those reports and documents will be deemed to be part of this
prospectus from the time they are filed. If anything in a report or document we
file after the date of this prospectus changes anything in it, this prospectus
will be deemed to be changed by that subsequently filed report or document
beginning on the date the report or document is filed.
We will provide to each person to whom a copy of this prospectus is
delivered a copy of any or all of the information that has been incorporated by
reference in this prospectus, but not delivered with this prospectus. We will
provide this information at no cost to the requestor upon written or oral
request addressed to LNR Property Corporation, 760 Northwest 107th Avenue,
Miami, Florida 33172, attention: Director of Investor Relations
(Telephone:305-485-2000).
INFORMATION WE FILE
We file annual, quarterly and current reports, proxy statements and
other materials with the SEC. The public may read and copy any materials we file
with the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The public may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC
maintains an Internet site that contains reports, proxy and information
statements and other information regarding issuers (including us) that file
electronically with the SEC. The address of that site is http:\\www.sec.gov.
Reports, proxy statements and other information we file also can be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
12
<PAGE> 14
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses in connection
with the issuance and distribution of the securities being registered, other
than underwriting discounts and commissions:
<TABLE>
<S> <C>
Registration fee -- Securities and Exchange Commission ..... $111,200
Accounting fees and expenses ............................... 7,500(1)
Legal fees and expenses .................................... 15,000(1)
Trustees' fees and expenses ................................ 5,000(1)
Miscellaneous .............................................. 11,300
--------
Total ...................................................... $150,000
========
</TABLE>
(1) Does not include expenses of preparing prospectus supplements and
other expenses relating to offerings of particular securities.
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the General Corporation Law of Delaware,
our Certificate of Incorporation provides that an officer, director, employee or
agent of our company is entitled to be indemnified for the expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him by
reason of any action, suit or proceeding brought against him by virtue of his
acting as such officer, director, employee or agent, provided he acted in good
faith or in a manner he reasonably believed to be in or not opposed to the best
interests of our company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful, except that in any
action or suit by or in the right of our company that person shall be
indemnified only for the expenses actually and reasonably incurred by him and,
if that person shall have been adjudged to be liable for negligence or
misconduct, he shall not be indemnified unless and only to the extent that a
court of appropriate jurisdiction shall determine that such indemnification is
fair and reasonable.
ITEM 16 EXHIBITS
2(a). Restated Certificate of Incorporation of the company --
incorporated by reference to the Company's Form 8-K, File
number 1-11749, dated November 17, 1997.
2(b). Amendment to Certificate of Incorporation dated April 28, 1998
-- incorporated by reference to the Company's definitive proxy
statement, File number 1-13223, filed March 9, 1998.
2(c). By-laws -- incorporated by reference to the Company's Form
8-K, File number 1-11749, dated November 17, 1997.
4. Form of Indenture
5. Opinion of Counsel
12. Statement of computation of ratios of earnings to fixed
charges
23. Consents
(i). Rogers & Wells LLP (counsel)--included in Exhibit 5
(ii). Deloitte & Touche LLP (accountants)
25. Statement of Eligibility of Trustee on Form T-1
II-1
<PAGE> 15
ITEM 17 UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i). To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii). To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii). To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by LNR pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of LNR's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in this
registration statement will be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
(5) That, (i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective and (ii) for the
purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE> 16
The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of LNR
pursuant to the foregoing provisions, or otherwise, LNR has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by LNR of expenses incurred or paid by a director, officer or
controlling person of LNR in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, LNR will, unless in the opinion
of counsel for LNR the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miami and State of Florida on November 25, 1998.
LNR PROPERTY CORPORATION
By: /s/ Steven J. Saiontz
------------------------------------
Steven J. Saiontz
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey P. Krasnoff and Shelly Rubin his
or her true and lawful attorney-in-fact and agent, with full powers of
substitution to sign for him and her and in his or her name any or all
amendments (including post-effective amendments) to the registration statement
to which this power of attorney is attached and to file those amendments and all
exhibits to them and other documents to be filed in connection with them with
the Securities and Exchange Commission.
Pursuant to the requirement of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
--------- -------- ----
<S> <C> <C>
/s/ Steven J. Saiontz
- ----------------------------------
Steven J. Saiontz Principal Executive Officer;
Director November 25, 1998
/s/ Shelly Rubin
- ----------------------------------
Shelly Rubin Principal Financial Officer November 25, 1998
/s/ John T. McMickle
- ----------------------------------
John T. McMickle Principal Accounting Officer November 25, 1998
/s/ Stuart A. Miller
- ----------------------------------
Stuart A. Miller Director November 25, 1998
</TABLE>
S-1
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
--------- -------- ----
<S> <C> <C>
/s/ Leonard Miller
- ----------------------------------
Leonard Miller Director November 25, 1998
/s/ Jeffrey P. Krasnoff
- ----------------------------------
Jeffrey P. Krasnoff Director November 25, 1998
/s/ Brian Bilzin
- ----------------------------------
Brian Bilzin Director November 25, 1998
/s/ Sue M. Cobb
- ----------------------------------
Sue M. Cobb Director November 25, 1998
/s/ Carlos M. de la Cruz
- ----------------------------------
Carlos M. de la Cruz Director November 25, 1998
</TABLE>
S-2
<PAGE> 19
EXHIBIT INDEX
EXHIBITS DESCRIPTION PAGE
-------- ----------- ----
2(a). Restated Certificate of Incorporation of the company --
incorporated by reference to the Company's Form 8-K, File
number 1-11749, dated November 17, 1997.
2(b). Amendment to Certificate of Incorporation dated April 28,
1998 -- incorporated by reference to the Company's definitive
proxy statement, File number 1-13223, filed March 9, 1998.
2(c). By-laws -- incorporated by reference to the Company's Form
8-K, File number 1-11749, dated November 17, 1997.
4. Form of Indenture
5. Opinion of Counsel
12. Statement of computation of ratios of earnings to fixed
charges
23. Consents
(i). Rogers & Wells LLP (counsel)--included in Exhibit 5
(ii). Deloitte & Touche LLP (accountants)
25. Statement of Eligibility of Trustee
<PAGE> 1
Exhibit 4
LNR PROPERTY CORPORATION,
ISSUER
TO
THE BANK OF NEW YORK,
TRUSTEE
INDENTURE
DATED AS OF DECEMBER , 1998
<PAGE> 2
CROSS-REFERENCE TABLE
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1) .................................. 7.10
(a)(2) .................................. 7.10
(a)(3) .................................. N.A.
(a)(4) .................................. N.A.
(a)(5) .................................. 7.10
(b) ..................................... 7.08; 7.10; 12.03
(c) ..................................... N.A.
311(a) ..................................... 7.11
(b) ..................................... 7.11
(c) ..................................... N.A.
312(a) ..................................... 2.07
(b) ..................................... 12.04
(c) ..................................... 12.04
313(a) ..................................... 7.06
(b) ..................................... 7.06
(c) ..................................... 12.03
(d) ..................................... 7.06
314(a) ..................................... 4.02; 12.05
(b) ..................................... N.A.
(c)(1) .................................. 12.05
(c)(2) .................................. 12.05
(c)(3) .................................. N.A.
(d) ..................................... N.A.
(e) ..................................... 12.05
(f) ..................................... 12.05
315(a) ..................................... 7.01(b)
(b) ..................................... 7.05; 12.03
(c) ..................................... 7.01(a)
(d) ..................................... 7.01(c)
(e) ..................................... 6.13
316(a) (last sentence) ..................... 12.06
(a)(1)(A) ............................... 6.05
(a)(1)(B) ............................... 6.04
(a)(2) .................................. N.A.
(b) ..................................... 6.08
(c) ..................................... 12.03
317(a)(1) .................................. 6.09
(a)(2) .................................. 6.10
(b) ..................................... 2.06
318(a) ..................................... 12.02
- -------
N.A. means Not Applicable
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE ........................................................................ 1
SECTION 1.01. Definitions .......................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act .................... 3
SECTION 1.03. Rules of Construction ................................................ 3
ARTICLE TWO ........................................................................ 4
SECTION 2.01. Form and Dating ...................................................... 4
SECTION 2.02. Amount Unlimited; Issuable in Series ................................. 4
SECTION 2.03. Denominations ........................................................ 5
SECTION 2.04. Execution and Authentication ......................................... 5
SECTION 2.05. Registrar and Paying Agent ........................................... 5
SECTION 2.06. Paying Agent to Hold Money in Trust .................................. 5
SECTION 2.07. Securityholder Lists ................................................. 6
SECTION 2.08. Transfer and Exchange ................................................ 6
SECTION 2.09. Replacement Securities ............................................... 6
SECTION 2.10. Outstanding Securities ............................................... 7
SECTION 2.11. Temporary Securities ................................................. 7
SECTION 2.12. Cancellation ......................................................... 7
SECTION 2.13. Defaulted Interest ................................................... 7
ARTICLE THREE ...................................................................... 8
SECTION 3.01. Company's Option to Redeem ........................................... 8
SECTION 3.02. Notices to Trustee ................................................... 8
SECTION 3.03. Selection of Securities to be Redeemed ............................... 8
SECTION 3.04. Notice of Redemption at the Company's Option ......................... 8
SECTION 3.05. Effect of Notice of Redemption ....................................... 9
SECTION 3.06. Deposit of Redemption Price .......................................... 9
SECTION 3.07. Holder's Right to Require Redemption ................................. 10
SECTION 3.08. Procedure for Requiring Redemption ................................... 10
SECTION 3.09. Securities Redeemed in Part .......................................... 10
ARTICLE FOUR ....................................................................... 10
SECTION 4.01. Payment of Securities ................................................ 10
SECTION 4.02. Reporting ............................................................ 11
SECTION 4.03. Corporate Existence .................................................. 11
SECTION 4.04. Compliance Certificate ............................................... 11
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 4.05. Further Instruments and Acts ......................................... 11
ARTICLE FIVE ....................................................................... 11
SECTION 5.01. Company May Consolidate, etc., Only on Certain Terms ................. 11
SECTION 5.02. Successor Corporation Substituted .................................... 12
ARTICLE SIX ........................................................................ 12
SECTION 6.01. Events of Default .................................................... 12
SECTION 6.02. Acceleration ......................................................... 13
SECTION 6.03. Other Remedies ....................................................... 14
SECTION 6.04. Waiver of Existing Defaults .......................................... 14
SECTION 6.05. Control by Majority .................................................. 14
SECTION 6.06. Payments of Securities on Default; Suit Therefor ..................... 15
SECTION 6.07. Limitation on Suits .................................................. 15
SECTION 6.08. Rights of Holders to Receive Payment and to Demand Conversion ........ 15
SECTION 6.09. Collection Suit by Trustee ........................................... 16
SECTION 6.10. Trustee May File Proofs of Claim ..................................... 16
SECTION 6.11. Restoration of Positions ............................................. 16
SECTION 6.12. Priorities ........................................................... 16
SECTION 6.13. Undertaking for Costs ................................................ 17
SECTION 6.14. Stay, Extension or Usury Laws ........................................ 17
SECTION 6.15. Liability of Stockholders, Officers, Directors and Incorporators ..... 17
ARTICLE SEVEN ...................................................................... 17
SECTION 7.01. Duties of Trustee .................................................... 17
SECTION 7.02. Rights of Trustee .................................................... 19
SECTION 7.03. Individual Rights of Trustee ......................................... 19
SECTION 7.04. Trustee's Disclaimer ................................................. 19
SECTION 7.05. Notice of Defaults ................................................... 19
SECTION 7.06. Reports by Trustee ................................................... 19
SECTION 7.07. Compensation and Indemnity ........................................... 20
SECTION 7.08. Replacement of Trustee ............................................... 21
SECTION 7.09. Successor Trustee by Merger, etc ..................................... 21
SECTION 7.10. Eligibility; Disqualification ........................................ 22
SECTION 7.11. Preferential Collection of Claims .................................... 22
ARTICLE EIGHT ...................................................................... 22
SECTION 8.01. Termination of the Company's Obligations ............................. 22
SECTION 8.02. Application of Trust Money ........................................... 23
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 8.03. Repayment to the Company ............................................. 23
ARTICLE NINE ....................................................................... 23
SECTION 9.01. Without Consent of Holders ........................................... 23
SECTION 9.02. With Consent of Holders .............................................. 24
SECTION 9.03. Compliance with Trust Indenture Act .................................. 25
SECTION 9.04. Revocation and Effect of Consents .................................... 25
SECTION 9.05. Notation on or Exchange of Securities ................................ 25
SECTION 9.06. Trustee to Sign Amendments, etc ...................................... 25
ARTICLE TEN ........................................................................ 25
SECTION 10.01 ...................................................................... 25
ARTICLE ELEVEN ..................................................................... 26
SECTION 11.01. Provisions Relating to Sinking or Purchase Funds .................... 26
ARTICLE TWELVE ..................................................................... 26
SECTION 12.01. Trust Indenture Act Controls ........................................ 26
SECTION 12.02. Supplemental Indentures Contract .................................... 26
SECTION 12.03. Notices ............................................................. 26
SECTION 12.04. Communication by Holders with Other Holders ......................... 27
SECTION 12.05. Certificate and Opinion as to Conditions Precedent .................. 27
SECTION 12.06. When Treasury Securities Disregarded ................................ 28
SECTION 12.07. Rules by Trustee, Paying Agent, Registrar ........................... 28
SECTION 12.08. Legal Holidays ...................................................... 28
SECTION 12.09. Governing Law and Submission to Jurisdiction ........................ 28
SECTION 12.10. Actions by the Company .............................................. 29
SECTION 12.11. No Adverse Interpretation of Other Agreements ....................... 29
SECTION 12.12. Successors .......................................................... 29
SECTION 12.13. Duplicate Originals ................................................. 29
SECTION 12.14. Table of Contents, Headings, etc .................................... 29
Exhibit A - Form of Debenture and Trustee's Authentication A-1
</TABLE>
iv
<PAGE> 6
INDENTURE, dated as of December __, 1998, between LNR Property
Corporation (the "Company"), a Delaware corporation having its principal office
at 760 N.W. 107th Avenue, Miami, Florida 33172, and The Bank of New York (the
"Trustee"), a New York banking corporation, which has its principal corporate
trust office at 101 Barclay Street, 21W, New York, New York 10286.
Each party agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's
debentures, notes or other evidences of unsecured indebtedness to be issued in
one or more series ("Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Board Resolution" means a resolution by the Board of
Directors or Executive Committee of the Company certified by its Secretary or an
Assistant Secretary as being duly adopted and in full force and effect.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a Legal Holiday.
"Capital Stock" means common or preferred stock entitled to
share in the equity or profits of a Corporation.
"Common Stock" means the common stock, par value $.10 per
share, of the Company, as that stock may be reconstituted from time to time,
except that "Common Stock" will not include the Company's Class B Common Stock.
"Company" means the Person named as such in this Indenture
until a successor replaces it and after that means the successor.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business is
principally administered (which at the date of this Indenture is at the location
set forth in the first paragraph of this Indenture).
"Corporation" includes corporations, associations, companies
and business trusts.
"Custodian" has the meaning provided in Section 6.01.
"Default" means any event which, upon the giving of notice or
passage of time, or both, would be an Event of Default.
"$" means the lawful currency of the United States.
"Event of Default" has the meaning provided in Section 6.01.
"Fiscal Year" means the period commencing on December 1 of a
year and ending on the next November 30 or such other period (not to exceed 12
months or 53 weeks) as the Company may from time to time adopt as its fiscal
year.
1
<PAGE> 7
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented
from time to time and will include the form and terms of the Securities of each
series established as contemplated by Section 2.01.
"Interest Payment Date" means the date on which an installment
of interest on the Securities is due and payable.
"Legal Holiday" has the meaning provided in Section 12.08.
"Maturity Date" means the date the principal of Securities is
due and payable.
"Officer" means the Chairman of the Board, any Vice Chairman
of the Board, the President, any Vice President, the Treasurer, the Secretary,
the Controller or any Assistant Secretary of a Person.
"Officers' Certificate" when used with respect to the Company
means a certificate signed by two Officers. Each such certificate will comply
with Section 314 of the TIA and include the statements described in Section
12.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. That counsel may be an employee of or
counsel to the Company or the Trustee. Each such opinion will include the
statements described in Section 12.05 if and to the extent required by that
Section.
"Paying Agent" has the meaning provided in Section 2.05.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any government agency or political subdivision.
"Registrar" has the meaning provided in Section 2.05.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other evidences of
unsecured indebtedness to be issued in one or more series by the Company.
"Securities Act of 1933" means the Securities Act of 1933, as
amended.
"Securities Exchange Act of 1934" means the Securities
Exchange Act of 1934, as amended.
"State" means any state of the United States or the District
of Columbia.
"Subsidiary" means a corporation of which a majority of the
voting stock is owned by the Company, by a Subsidiary of the Company or by the
Company and one or more Subsidiaries of the Company.
"Supplemental Indenture" means an indenture between the
Company and the Trustee which supplements this Indenture.
2
<PAGE> 8
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date of this Indenture.
"Trustee" means the Person named as such in this Indenture
and, subject to the provisions of Article 7, any successor to that person.
"Trust Officer" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"United States" means the United States of America.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. In
addition, the provisions of Sections 310 to and including 317 of the TIA
that impose duties on any person are incorporated by reference in, and form
a part of, this Indenture.
The following TIA terms mean the following when used in this
Indenture:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture securityholder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined in
the TIA, defined in the TIA by reference to another statute or defined by SEC
rule have the meanings assigned to them.
SECTION 1.03. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the
plural include the singular.
3
<PAGE> 9
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) The Securities of each series will be
substantially in the form established by a Supplemental Indenture relating to
the Securities of that series. The Securities may have notations, legends or
endorsements required by law, stock exchange rules or usage. The Company will
approve the form of the Securities and any notation, legend or endorsement on
them. Each Security will be dated the date of its authentication.
(b) The Trustee's certificate of authentication will
be substantially in the form of Exhibit A.
SECTION 2.02. Amount Unlimited; Issuable in Series. The aggregate principal
amount of the Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to
the issuance of Securities of a series, the Company and the Trustee will execute
a Supplemental Indenture which will set forth as to the Securities of that
series, to the extent applicable:
(1) the title of the Securities;
(2) any limit upon the aggregate principal amount of
Securities which may be issued;
(3) the date or dates on which the Securities will mature and
the amounts to be paid upon maturity of the Securities;
(4) the rate or rates (which may be fixed or variable) at
which the Securities will bear interest, if any, the dates from which interest
will accrue, the dates on which interest will be payable and the record date for
the interest payable on any interest payment date;
(5) the currency or currencies in which principal, premium, if
any, and interest, if any, will be payable;
(6) the place or places where principal of, premium, if any,
and interest, if any, on the Securities will be payable;
(7) any provisions regarding the right of the Company to
redeem Securities or of holders to require the Company to redeem Securities;
(8) the right, if any, of holders of the Securities to convert
them into stock or other securities of the Company, including any provisions
intended to prevent dilution of those conversion rights;
(9) any provisions by which the Company will be required or
permitted to make payments to a sinking fund which will be used to redeem
Securities or a purchase fund which will be used to purchase Securities;
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(10) the percentage of the principal amount of the Securities
which is payable if maturity of the Securities is accelerated because of a
default; and
(11) any other terms of the Securities.
SECTION 2.03. Denominations. Unless otherwise provided in the Supplemental
Indenture relating to a series of Securities, the Securities of each series
will be issuable in registered form without coupons in denominations of
$1,000 and multiples of $1,000.
SECTION 2.04. Execution and Authentication. Two Officers will sign the
Securities of each series for the Company by manual or facsimile signature.
The Company's seal will be reproduced on the Securities, which reproduction
may be by facsimile. If an Officer whose signature is on a Security no
longer holds office at the time the Trustee authenticates the Security, the
Security will be valid nonetheless.
Upon a written order of the Company signed by an officer, the
Trustee shall authenticate Securities for original issue. A Security will not be
valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature will be conclusive
evidence that the Security has been authenticated under this Indenture.
SECTION 2.05. Registrar and Paying Agent. The Company will maintain an
office or agency where Securities of each series may be presented for
conversion, registration of transfer or for exchange (the "Registrar") and
an office or agency where Securities of each series may be presented for
payment ("Paying Agent"). The Registrar will keep a register of the
Securities of each series and of their transfer and exchange. The Company
may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company will enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture
which will incorporate the terms of the TIA. The agreement will implement the
provisions of this Indenture that relate to that agent. The Company will notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee will act as such. The Company
or any Subsidiary may act as Paying Agent, Registrar, co-registrar or transfer
agent.
The Company initially appoints the Trustee to act as Registrar
and Paying Agent in connection with the Securities of each series, except in
instances in which the Supplemental Indenture relating to a series of Securities
appoints a different Registrar or Paying Agent.
SECTION 2.06. Paying Agent to Hold Money in Trust. Prior to each due date
of the principal of, premium, if any, or interest, if any, on any Security,
the Company will deposit with the Paying Agent a sum sufficient to pay that
principal, premium or interest when due. The Paying Agent will hold in
trust for the benefit of the Holders of the Securities of a series, and if
the Paying Agent is not the Trustee, in trust for the benefit of the
Trustee, all sums held by the Paying Agent for the payment of principal,
premium or interest on the Securities of that series and, in the case of a
Paying Agent other than the Trustee, the Paying Agent will give the Trustee
notice of any default by the Company in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it will segregate the money
held by it as
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Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent will have no further liability for the
money.
SECTION 2.07. Securityholder Lists. The Trustee will preserve in as current
a form as is reasonably practicable the most recent list available to it of
the names and addresses of the Holders of the Securities of each series. If
the Trustee is not the Registrar, the Company will furnish to the Trustee
in writing at least five Business Days before each Interest Payment Date
and at such other times as the Trustee may request in writing all
information in the possession or control of the Company or its Paying Agent
as to the names and addresses of Holders of the Securities of a series.
SECTION 2.08. Transfer and Exchange. Unless otherwise provided in the
Supplemental Indenture relating to Securities of a series, Securities which
are issued in registered form will be transferred only upon the surrender
of the Securities for registration of transfer. When a Security is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar will register the transfer as requested if the
requirements of Article 8 of the New York Uniform Commercial Code are met.
When Securities are presented to the Registrar or a co-registrar with a
request to exchange them for an equal principal amount of Securities of the
same series of other denominations, the Registrar will make the exchange as
requested if the same requirements are met. To permit registration of
transfers and exchanges, the Company will execute and the Trustee will
authenticate Securities at the Registrar's or co-registrar's request. The
Company will not charge a fee for transfers or exchanges.
The Company will not be required to make, and the Registrar
need not register, transfers or exchanges of (i) Securities selected for
redemption (except, in the case of Securities to be redeemed in part, transfers
or exchanges of the portion of the Securities not to be redeemed) or (ii) any
Securities of a series for a period of 15 days before the first mailing of a
notice of the Securities of that series which are to be redeemed.
Prior to the due presentation for registration or transfer of
any Security which was issued in registered form, the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar may deem and treat the person in
whose name the Security is registered as the absolute owner of the Security for
all purposes, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar will be affected by notice to the contrary.
SECTION 2.09. Replacement Securities. If a mutilated Security which had
been issued in registered form is surrendered to the Registrar or if the
Holder presents evidence to the satisfaction of the Company and the Trustee
that a Security which had been issued in registered form has been lost or
destroyed, the Company will issue and the Trustee will authenticate a
replacement Security of the same series if the requirements of Section
8-405 of the New York Uniform Commercial Code are met and the Holder
satisfies any other reasonable requirements of the Trustee. If required by
the Trustee or the Company, the replacement Security will not be issued
until the Holder furnishes an indemnity bond sufficient in the judgment of
the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent and the Registrar or any co-registrar from any loss which any of
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them may suffer if the Security is replaced. The Company may charge the
Holder for its expenses in replacing a Security.
Every replacement Security will be an obligation of the
Company, even if the replaced Security is subsequently found.
SECTION 2.10. Outstanding Securities. The Securities outstanding at any
time will be all the Securities authenticated by the Trustee, except those
cancelled by it, those delivered to it for cancellation and those described
in this Section as not outstanding. A Security does not cease to be
outstanding because the Company or its affiliate holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser (in which
case the replaced Security will be treated as outstanding to the extent
permitted by Section 8-210 of the New York Uniform Commercial Code).
If the Paying Agent (other than the Company or a Subsidiary)
segregates and holds in trust, in accordance with this Indenture, on a
redemption date or Maturity Date money sufficient to pay all principal, premium,
if any, and interest, if any, payable on that date with respect to the
Securities to be redeemed or maturing, as the case may be, then on that date
those Securities will cease to be outstanding and interest on them will cease to
accrue.
SECTION 2.11. Temporary Securities. Until definitive Securities of a series
are ready for delivery, the Company may prepare and the Trustee will
authenticate temporary Securities of that series. Temporary Securities will
be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company will prepare and the Trustee will
authenticate definitive Securities and deliver them in exchange for
temporary Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver Securities
of a series to the Trustee for cancellation and the Trustee will reduce
accordingly the aggregate amount of the Securities of that series which are
outstanding. The Registrar and the Paying Agent will forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange,
payment, or conversion. The Trustee and no one else will cancel and
(subject to the record retention requirements of the Exchange Act) dispose
of all Securities surrendered for registration of transfer, exchange,
payment, conversion or cancellation in accordance with its procedures for
disposing of cancelled Securities in effect at the time of such disposition
and deliver certificates of such disposition to the Company unless the
Company directs the Trustee to deliver the cancelled Securities to the
Company. Subject to Section 2.09, the Company may not issue new Securities
of a series to replace Securities of the series it has redeemed, paid,
converted or delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities of a series, it will pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) to the
persons who are Holders of the Securities of that series on a subsequent
special record date, which date will be at least five Business Days prior
to the payment date. The Company will fix the special record date and
payment date, and, at least 15 days before the special record date, the
Company will mail to each Holder of Securities of
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that series a notice that states the special record date, the payment date
and the amount of defaulted interest and any interest on that defaulted
interest which is to be paid. Notwithstanding the foregoing, the Company
may pay defaulted interest in any other lawful manner.
SECTION 2.14. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Company's Option to Redeem. The Company will have the option
to redeem Securities of a series only to the extent, if any, and only on
the terms, set forth in the Supplemental Indenture relating to the
Securities of that series. If the Company has the option to redeem
Securities of a series, unless otherwise provided in the Supplemental
Indenture relating to the series, the terms of the redemption will include
those set forth in Sections 3.02 through 3.06.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
Securities of a series, it will notify the Trustee of the redemption date
and the principal amount and series of Securities to be redeemed. The
Company will give each notice provided for in this Section at least 45 days
before the redemption date. If fewer than all the Securities of a series
are to be redeemed, the record date for determining which Securities of the
series are to be redeemed will be selected by the Company, which will give
notice of the record date to the Trustee at least 15 days before the record
date.
SECTION 3.03. Selection of Securities to be Redeemed. If fewer than all the
Securities of a series are to be redeemed at the Company's option, the
Trustee will select the Securities of that series to be redeemed by lot or,
in its sole discretion, pro-rata. The Trustee will make the selection from
outstanding Securities of that series not previously called for redemption.
The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than the minimum denomination in
which Securities of the applicable series may be issued. Securities and
portions of Securities the Trustee selects will be in amounts equal to the
minimum denomination in which Securities of the applicable series may be
issued and multiples of that amount. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee will notify the Company
promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.04. Notice of Redemption at the Company's Option. At least 30
days and not more than 60 days before a date set for redemption at the
Company's option, the Company will mail a notice of redemption by
first-class mail to each Holder of Securities to be redeemed in whole or in
part.
The notice will identify the principal amount and series of
each Security to be redeemed (including CUSIP numbers, if any) and will state:
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(1) the redemption date;
(2) the redemption price plus accrued interest, if
any;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption in whole or
in part must be surrendered to the Paying Agent to collect the
redemption price plus accrued interest, if any;
(5) that, unless the Company defaults in making the
redemption payment, interest on Securities (or portions of Securities)
called for redemption will cease to accrue on the redemption date and,
if applicable, that those Securities (or the portions of then called
for redemption) will cease on the redemption date (or such other date
as is provided in the Supplemental Indenture relating to the
Securities) to be convertible into, or exchangeable for, other
securities or assets; and
(6) if applicable, the current conversion or exchange
price.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company will provide the Trustee with the information required by clauses
(1) through (3) and (6).
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption is
mailed, Securities, or portions of Securities called for redemption will
become due and payable on the redemption date and at the redemption price.
Upon surrender to the Paying Agent, those Securities will be paid at the
redemption price, plus accrued and unpaid interest to the redemption date.
On and after the date fixed for redemption (unless the Company defaults in
the payment of the redemption price, together with interest accrued to the
redemption date) interest on the Securities, or portions of them, which are
redeemed will cease to accrue and any right to convert those Securities
into, or exchange them for, other securities or assets will terminate and
those Securities will cease to be convertible or exchangeable. Failure to
give notice or any defect in the notice to any Holder will not affect the
validity of the notice to any other Holder.
SECTION 3.06. Deposit of Redemption Price. No later than the Business Day
prior to the redemption date specified in a notice of redemption, the
Company will deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, segregate and hold in trust) money
sufficient to redeem on the redemption date all the Securities called for
redemption on that redemption date at the appropriate redemption price,
together with accrued interest to the redemption date, other than
Securities or portions of Securities called for redemption which have been
delivered by the Company to the Trustee for cancellation or Securities
which have been surrendered for conversion or exchange. If any Securities
called for redemption are converted or exchanged, any money deposited with
the Paying Agent for redemption of those Securities will be paid to the
Company upon its request, or, if the money is held in trust by the Company
or a Subsidiary as Paying Agent, the money will be discharged from the
trust.
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SECTION 3.07. Holder's Right to Require Redemption. Holders of Securities
of a series will have the right to require the Company to redeem those
Securities only to the extent, and only on the terms, set forth in the
Supplemental Indenture relating to the Securities of that series. If
Holders of Securities of a series have the right to require the Company to
redeem those Securities, unless otherwise provided in the Supplemental
Indenture relating to the Securities of that series, the terms of the
redemption will include those set forth in Section 3.08.
SECTION 3.08. Procedure for Requiring Redemption. If a Holder has the right
to require the Company to redeem Securities, to exercise that right, the
Holder must deliver the Securities to the Paying Agent, endorsed for
transfer and with the form on the reverse side entitled "Option to Require
Redemption" completed. Delivery of Securities to the Paying Agent as
provided in this Section will constitute an irrevocable election to cause
the specified principal amount of Securities to be redeemed. When
Securities are delivered to the Paying Agent as provided in this Section,
unless the Company fails to make the payments due as a result of the
redemption within 20 days after the Securities are delivered to the Paying
Agent as provided in this Section interest on the Securities will cease to
accrue and, if the Securities are convertible or exchangeable, the Holder's
right to convert or exchange the Securities will terminate.
The Company's determination of all questions regarding the
validity, eligibility (including time of receipt) and acceptance of any Security
for redemption will be final and binding.
SECTION 3.09. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company will execute and the Trustee will
authenticate and deliver to the Holder (at the Company's expense) a new
Security of the same series in principal amount equal to the unredeemed
portion of the Security which was surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. The Company will promptly pay or cause
to be paid the principal of, premium, if any, and interest, if any, on each
of the Securities of a series at the places and time and in the manner
provided in the Securities and in the Supplemental Indenture relating to
the series. An installment of principal, premium or interest will be
considered paid on the date it is due if the Trustee or Paying Agent holds
on that date in accordance with this Indenture or the applicable
Supplemental Indenture money designated for and sufficient to pay the
installment then due.
The Company will pay or cause to be paid interest on overdue
principal at the rate specified in the Securities; it will also pay interest on
overdue installments of interest at the same rate (or such other rate as is
provided in the applicable Supplemental Indenture), to the extent lawful.
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SECTION 4.02. Reporting. The Company will file with the Trustee within 15
days after filing with the SEC, copies of its annual reports and of the
information, documents, and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"). The
Company also will comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. Corporate Existence. Subject to Article 5, the Company will
do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company will not be required to
preserve any such right or franchise if the Board of Directors determines
that the preservation of the right or franchise is no longer desirable in
the conduct of the business of the Company and that its loss will not be
disadvantageous in any material respect to the Holders of Securities of any
series.
SECTION 4.04. Compliance Certificate. The Company will deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any default by the Company and whether or not the signers know
of any default that occurred during the fiscal year. If they do, the
certificate will describe the default, its status and what action the
Company is taking or proposes to take with respect thereto. The Company
also will comply with TIA Section 314(a)(4).
SECTION 4.05. Further Instruments and Acts. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Company May Consolidate, etc., Only on Certain Terms. The
Company will not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an
entirety to any person, unless:
(1) the corporation formed by the consolidation or into which
the Company is merged or the person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety will be a corporation organized and
existing under the laws of the United States of America, a State of the
United States of America or the District of Columbia and expressly
assumes, by a one or more supplemental indentures, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest, if any, on all the Securities of each series and the
performance of every covenant of this Indenture and of all Supplemental
Indentures to be performed or observed by the Company;
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(2) immediately after giving effect to the transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, will have occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
consolidation, merger, conveyance, transfer or lease and the
supplemental indenture (or the supplemental indentures together) comply
with this Article and that all the conditions precedent relating to the
transaction set forth in this Section have been fulfilled.
SECTION 5.02. Successor Corporation Substituted. Upon any event described
in Section 5.01, the successor corporation will succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture and all the Supplemental Indentures relating to
outstanding series of Securities, and the predecessor corporation will be
relieved of all obligations and covenants under this Indenture and each of
those Supplemental Indentures.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" with regard to the Securities of a
series occurs if:
(1) The Company defaults in the payment of interest on any
Security of that series when it becomes due and payable and the default
continues for a period of 30 days (or such other period, which may be
no period) as is specified in the Supplemental Indenture relating to
the series;
(2) The Company defaults in the payment of the principal of,
or premium, if any, on any Security of that series as and when it
becomes due and payable at its stated maturity or upon redemption,
acceleration or otherwise and, if provided in the Supplemental
Indenture relating to the series, the default continues for a period
specified in the Supplemental Indenture;
(3) The Company fails to comply with any of its other
covenants or agreements with regard to Securities of the series or this
Indenture (other than a covenant or agreement, a default in whose
performance or whose breach is dealt with specifically elsewhere in
this Section) and that failure continues for a period of 60 days after
the date of the notice specified below;
(4) the Company, pursuant to any Bankruptcy Law applicable to
the Company:
(A) commences a voluntary case;
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(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any applicable Bankruptcy Law:
(A) for relief in an involuntary case;
(B) appointing a Custodian of the Company or for any
substantial part of its property; or
(C) ordering its winding up or liquidation;
and the order or decree remains unstayed and in effect for 90 days.
Each of the occurrences described in clauses (1) through (5)
will constitute an Event of Default with respect to the Securities of a series
whatever the reason for the occurrence and whether it is voluntary or
involuntary or is 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.
The term "Bankruptcy Law" means Title 11 of the United States
Code or any similar United States Federal or State law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
A Default under clause (3) of this Section is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in principal amount of the then outstanding Securities of a series with regard
to which the Company has failed to comply with a covenant or agreement notify
the Company and the Trustee, of the Default and the Company does not cure the
Default within 45 days after the giving of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default."
A Default under clause (1), (2) or (3) with regard to
Securities of a series will not constitute a Default with regard to Securities
of any other series except to the extent, if any, provided in the Supplemental
Indenture relating to the other series.
The Company will deliver to the Trustee, within 20 days after
it occurs, written notice in the form of an Officers' Certificate of any event
of which the Company is aware which with the giving of notice and the lapse of
time would become an Event of Default under clause (3), its status and what
action the Company is taking or proposes to take with respect to it.
SECTION 6.02. Acceleration. If an Event of Default as to the Securities of
a series occurs and is continuing, unless the principal of all of the
Securities of the series has already become due and payable, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities of the series then outstanding by notice
to the
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Company and the Trustee, may declare the principal of and accrued
interest, if any, on all the Securities of that series to be due and
payable. Upon such a declaration, that principal and interest will be due
and payable immediately. If an Event of Default with regard to the
Securities of a series specified in Section 6.01(4) or (5) occurs, the
principal of, premium, if any, and accrued interest, if any, on all the
Securities of a series will automatically become and be immediately due and
payable without any declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in principal amount of the
Securities of that series then outstanding, on behalf of the Holders of all
the Securities of a series, by notice to the Trustee may rescind an
acceleration and its consequences if all existing Events of Default with
regard to the Securities of a series have been cured or waived except
nonpayment of principal, premium, if any, or interest, if any, that has
become due solely because of acceleration, and if the rescission would not
conflict with any judgment or decree. No such rescission will affect any
subsequent default or impair any consequent right.
SECTION 6.03. Other Remedies. If an Event of Default with regard to the
Securities of a series occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, premium, if any,
and interest, if any, on the Securities of the series or to enforce the
performance of any provision under this Indenture or any applicable
Supplemental Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default with regard to the Securities of a
series will not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default with regard to the Securities of a series.
No remedy is exclusive of any other remedy. All available remedies are
cumulative.
SECTION 6.04. Waiver of Existing Defaults. The Holders of a majority in
aggregate principal amount of the Securities of a series then outstanding,
on behalf of the Holders of all the Securities of that series, by notice to
the Trustee may consent to the waiver of any past Default with regard to
Securities of the series and its consequences except (i) a default in the
payment of interest or premium, if any, on, or the principal of, Securities
of the series, or (ii) a default in respect of a covenant or a provision
that under Section 9.02 cannot be modified or amended without the consent
of the Holders of all Securities of the series then outstanding. The
defaults described in clauses (i) and (ii) in the previous sentence may be
waived with the consent of the Holders of all Securities of the series then
outstanding. When a Default or Event of Default is waived, it is deemed
cured and not continuing, but no waiver will extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of the Securities of a series then outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee with regard to the Securities of that series or of exercising
any trust or power conferred on the Trustee with regard to the Securities
of that series. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or, subject to Section 7.01, that
the Trustee determines is unduly prejudicial to the rights of other
Securityholders or that would involve the Trustee in personal liability
provided, however, that the Trustee may take any other action deemed
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proper by the Trustee that is not inconsistent with such direction. Prior
to taking any action as a result of a direction given under this Section,
the Trustee will be entitled to indemnification satisfactory to it in its
sole discretion against all losses and expenses caused by taking or not
taking that action.
SECTION 6.06. Payments of Securities on Default; Suit Therefor. The Company
covenants that upon the occurrence of an Event of Default with regard to
the Securities of a series described in Section 6.01(1) or (2), then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the holders of the Securities in that series, the whole amount that will
then have become due and payable on all such Securities of that series for
principal, premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) on the overdue installments
of interest at the rate borne by the Securities of that series; and, in
addition, such further amount as will be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred
by the Trustee hereunder other than through its negligence or bad faith.
Until such demand by the Trustee, the Company may pay the principal of and
premium, if any, and interest on the Securities of that series to the
registered Holders.
SECTION 6.07. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default as to a series is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities of the series then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity, and the Event of Default has not been waived; and
(5) the Trustee has received no contrary direction from the
Holders of a majority in principal amount of the Securities of the
series then outstanding during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Holder of the same series of Securities or to obtain a
preference or priority over another Holder of the same series of Securities.
SECTION 6.08. Rights of Holders to Receive Payment and to Demand
Conversion. Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security of any series to receive payment of
principal of, premium, if any, and interest, if any, on the Security (and
interest on overdue principal and interest on overdue installments of
interest, if any, as provided in Section 4.01), on or after the respective
due dates expressed in the
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Security or, in the case of redemption, on or after the redemption date, or
in the case of conversion or exchange, to receive the security issuable
upon conversion or exchange or to institute suit for the enforcement of any
such payment, conversion or exchange on or after the applicable due date,
redemption date or conversion or exchange date, as the case may be, against
the Company, will not be impaired or affected without the consent of the
Holder.
SECTION 6.09. Collection Suit by Trustee. If an Event of Default with
regard to the Securities of a series in payment of principal, premium, if
any, or interest, if any, specified in clause (1) or (2) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount
of principal, premium, if any, and interest remaining unpaid (together with
interest on that unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07.
SECTION 6.10. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of the
Securities of any or all series allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless
prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other person
performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the
Trustee and, if the Trustee consents to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.
SECTION 6.11. Restoration of Positions. If a judicial proceeding by the
Trustee or a Securityholder to enforce any right or remedy under this
Indenture or any Supplemental Indenture is dismissed or decided favorably
to the Company, except as otherwise provided in the judicial proceeding,
the Company, the Trustee and the Securityholders will be restored to the
positions they would have been in if the judicial proceeding had not been
instituted.
SECTION 6.12. Priorities. If the Trustee collects any money pursuant to
this Article 6 with respect to Securities of a series, subject to Article
11, it will pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities of the series for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities of the series for principal and interest,
respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities of a series pursuant to this Section. At least
15 days before the record date, the Company will mail to each Holder of
Securities of the series and the Trustee a notice that states the record date,
the payment date and the amount to be paid.
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SECTION 6.13. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or any Supplemental Indenture, or in
any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.13 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders
of in aggregate more than 10% in principal amount of the Securities of a
series then outstanding, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or
interest on the Security of a series held by that Holder on or after the
due date provided in the Security of a series or to any suit for the
enforcement of the right to convert or exchange the Security of a series in
accordance with the provisions of a Supplemental Indenture applicable to
that Security.
SECTION 6.14. Stay, Extension or Usury Laws. The Company agrees (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, and will resist any and
all efforts to be compelled to take the benefit or advantage of, any stay
or extension law or any usury or other law, wherever enacted, now or at any
subsequent time in force, which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, and/or
interest on any of the Securities as contemplated in this Indenture or a
Supplemental Indenture, or which may affect the covenants or performance of
this Indenture, and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and agrees
that it will not hinder, delay or impede the execution of any power granted
to the Trustee in this Indenture or any Supplemental Indenture, but (to the
extent that it may lawfully do so) will suffer and permit the execution of
any such power as though no such law had been enacted.
SECTION 6.15. Liability of Stockholders, Officers, Directors and
Incorporators. No stockholder, officer, director or incorporator, as such,
past, present or future, of the Company, or any of its successor
corporations, will have any personal liability in respect of the Company's
obligations under this Indenture or any Securities by reason of his or its
status as such stockholder, officer, director or incorporator; provided,
however, that nothing in this Indenture or in the Securities will prevent
recourse to and enforcement of the liability of any stockholder or
subscriber to Capital Stock in respect of shares of Capital Stock which
have not been fully paid up.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default with regard to the Securities of a
series has occurred and is continuing, the Trustee will exercise the rights and
powers vested in it by this Indenture and any applicable Supplemental Indenture
and use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i)the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and any
Supplemental Indentures and no implied covenants or obligations will be
read into this Indenture or any Supplemental Indenture against the
Trustee; and
(ii)the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed in them,
upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture in the absence of bad faith on
the Trustee's part; provided, however, that the Trustee will examine
the certificates and opinions to determine whether or not they
substantially conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(4) the Trustee will not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any
of its duties under this Indenture or any Supplemental Indenture or in
the exercise of any of its rights or powers, if it has reasonable
grounds to believe repayment of the funds or adequate indemnity against
the risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee is subject
to the provisions of this Section 7.01 and to the provisions of the TIA.
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(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money and
Government Obligations held in trust by the Trustee need not be segregated from
other funds or items except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel which conforms to
Section 12.05. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such an Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and will not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers, except conduct which constitutes wilful misconduct, negligence
or bad faith.
(e) The Trustee may consult with counsel of its selection, and
the Trustee will not be liable for any action it takes or omits in reasonable
reliance on, and in accordance with, advice of counsel.
(f) The Trustee will not be required to investigate any facts
or matters stated in any document, but if it decides to investigate any matters
or facts, the Trustee or its agents or attorneys will be entitled to examine the
books, records and premises of the Company.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or any of its affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) is not responsible for
and makes no representation as to the validity or adequacy of this
Indenture, (ii) will not be responsible for and will not make any
representation as to the validity or adequacy of any Supplemental
Indenture, (iii) will not be accountable for the Company's use of the
proceeds from the Securities of any series, and (iv) will not be
responsible for any statement of the Company in this Indenture or any
Supplemental Indenture, other than the Trustee's certificate of
authentication, or in any prospectus used in the sale of any of the
Securities, other than statements, if any, provided in writing by the
Trustee for use in such a prospectus.
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SECTION 7.05. Notice of Defaults. The Trustee will give to the Holders of
the Securities of a series notice of any Default with regard to the
Securities of that series known to the Trustee, within 90 days after it
occurs; provided, that, except in the case of a Default in the payment of
the principal of, or premium, if any, or interest on any Security, the
Trustee will be protected in withholding notice of the Default if and so
long as a committee of its Trust Officers in good faith determines that the
withholding of the notice is in the interests of the Holders of the
Securities of the series.
SECTION 7.06. Reports by Trustee. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
will mail to each Securityholder, at the name and address which appears on
the registration books of the Company, and to each Securityholder who has,
within the two years preceding the mailing, filed that person's name and
address with the Trustee for that purpose and each Securityholder whose
name and address have been furnished to the Trustee pursuant to Section
2.07, a brief report dated as of that May 15 which complies with TIA
Section 313(a). The Trustee also will comply with TIA Section 313(b).
A copy of each report will at the time of its mailing to
Securityholders be filed with each stock exchange on which Securities are listed
and also with the SEC. The Company will promptly notify the Trustee when the
Securities of any series are listed on any stock exchange and of any delisting
of Securities of any series.
SECTION 7.07. Compensation and Indemnity. The Company will pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services. Those expenses will include the reasonable compensation and
expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Company will indemnify the Trustee against any
and all loss, liability or expense (including reasonable attorneys' fees)
incurred by it in connection with the administration of the trust created
by this Indenture or any Supplemental Indenture and the performance of its
duties under this Indenture or any Supplemental Indenture. The Trustee will
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company will not relieve the
Company of its obligations under this Section. The Company will defend the
claim and the Trustee may have separate counsel and the Company will pay
the fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against
any loss, expense or liability incurred by the Trustee to the extent it is
due to the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's obligation to make payments to the
Trustee under this Section 7.07, the Trustee will have a lien prior to the
Securities on all money or property held or collected by the Trustee, other than
money or property held in trust to pay principal or interest on particular
Securities. Those obligations of the Company will survive the satisfaction and
discharge of this Indenture.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (4) or (5) of Section 6.01 occurs, the
expenses and the compensation for the services of the Trustee are intended to
constitute expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.07, "Trustee" will include any
predecessor Trustee, but the wilful misconduct, negligence or bad faith of any
Trustee will not affect the rights of any other Trustee under this Section 7.07.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time by
so notifying the Company. The Holders of a majority in aggregate principal
amount of the Securities of all series then outstanding may remove the
Trustee by so notifying the Trustee and the Company and may appoint a
successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order
for relief is entered with respect to the Trustee under any bankruptcy
law;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of Securities of all series
then outstanding may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
No removal or appointment of a Trustee will be valid if that
removal or appointment would conflict with any law applicable to the Company.
A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee will, subject to the lien provided for in Section 7.07,
transfer all property held by it as a Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture and all Supplemental Indentures. A successor Trustee will
mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate principal amount of Securities
of all series then outstanding may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
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Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 will continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust assets to, another Person, the resulting, surviving or
transferee Person will, without any further act, be the successor Trustee.
If at the time a successor by merger, conversion or
consolidation to the Trustee succeeds to the trusts created by this Indenture
any of the Securities have been authenticated but not delivered, the successor
to the Trustee may adopt the certificate of authentication of the predecessor
Trustee, and deliver the Securities which were authenticated by the predecessor
Trustee; and if at that time any of the Securities have not been authenticated,
the successor to the Trustee may authenticate those Securities either in the
name of the predecessor or in its own name as the successor to the Trustee; and
in either case the certificates of authentication will have the full force
provided in this Indenture for certificates of authentication.
SECTION 7.10. Eligibility; Disqualification. The Trustee will at all times
satisfy the requirements of TIA Section 310(a). The Trustee will at all
times have a combined capital and surplus of at least $50,000,000 as set
forth in its most recently published annual report of condition, which will
be deemed for this paragraph to be its combined capital and surplus. The
Trustee will comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9).
SECTION 7.11. Preferential Collection of Claims. The Trustee will comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA
Section 311(b). A Trustee who has resigned or been removed will be subject
to TIA Section 311(a) to the extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations. When (i) the
Company delivers to the Trustee all outstanding Securities of all series
(other than Securities replaced pursuant to Section 2.09) for cancellation
or (ii) all outstanding Securities of all series have become due and
payable, or are due and payable within one year or are to be called for
redemption within one year, under arrangements satisfactory to the Trustee
for giving the notice of redemption, and the Company irrevocably deposits
in trust with the Trustee (subject to Article Eleven) money or U.S.
Government Obligations sufficient to pay the principal, premium, if any,
and interest, if any, on the Securities of all series to maturity or
redemption, as the case may be, and if, in the case of either (i) or (ii)
above the Company also pays or causes to be paid all other sums payable by
the Company under this Indenture, then this Indenture will cease to be of
further effect.
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Notwithstanding the foregoing, the Company's obligations to
pay principal, premium, if any, and interest, if any, on the Securities and the
Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and
in Article Ten will survive until all the Securities of all series are no longer
outstanding. Thereafter, the Company's obligations in Section 7.07 will survive.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities of a series at a
future date to the extent the Securities are redeemable in accordance with
Article Three and the applicable Supplemental Indenture.
After a deposit pursuant to this Section 8.01 or after all
outstanding Securities of all series have been delivered to the Trustee for
cancellation, the Trustee upon request from the Company, accompanied by an
Officers' Certificate and an Opinion of Counsel which complies with Section
12.05, and at the cost of the Company, will acknowledge in writing the
satisfaction and discharge of the Company's obligations under the Securities of
all series and this Indenture except for those surviving obligations specified
above.
In order to have money available on payment dates to pay
principal, premium, if any, or interest, if any, on the Securities of a series,
the U.S. Government Obligations will be payable as to principal, premium, if
any, or interest on or before those payment dates in amounts sufficient to
provide the necessary money. U.S. Government Obligations used for this purpose
may not be callable at the issuer's option.
"U.S. Government Obligations" means:
(1) direct obligations of the United States for the payment of
which its full faith and credit is pledged; or
(2) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States.
SECTION 8.02. Application of Trust Money. Subject to Article Eleven and
Section 8.03, the Trustee will hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01. It will apply the
deposited money and the money from the U.S. Government Obligations through
the Paying Agent and in accordance with this Indenture and any applicable
Supplemental Indentures to the payment of principal of, premium, if any,
and interest, if any, on the Securities with regard to which the money or
U.S. Government Obligations were deposited.
SECTION 8.03. Repayment to the Company. The Trustee and the Paying Agent
will promptly pay to the Company upon request any excess money or
securities held by them at any time. The Trustee and the Paying Agent will
pay to the Company upon request any money held by them for the payment of
principal, premium or interest that remains unclaimed for two years. After
such payment, all liability of the Trustee and the Paying Agent with
respect to that money will cease.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee may
amend or supplement this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to establish the form and terms of the Securities of any
series as contemplated in Article Two of this Indenture;
(4) to provide for uncertificated Securities in addition to or
in place of certificated Securities; or
(5) to make any change that does not materially adversely
affect the rights of any Securityholder.
After an amendment under this Section becomes effective, the Company will
mail to the Securityholders a notice briefly describing the amendment. The
failure to give such notice to all Securityholders, or any defect in a
notice, will not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company and the Trustee may (i)
amend or supplement this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then outstanding
or (ii) supplement this Indenture with regard to a series of Securities,
amend or supplement a Supplemental Indenture relating to a series of
Securities, or amend the Securities of a series, without notice to any
Securityholder but with the written consent of the Holders of a majority in
aggregate principal amount of the Securities of that series then
outstanding. The Holders of a majority in principal amount of the
Securities of all series then outstanding may waive compliance by the
Company with any provision of this Indenture or the Securities without
notice to any Securityholder. The Holders of a majority in principal amount
of the Securities of any series then outstanding may waive compliance with
any provision of this Indenture, any Supplemental Indenture or the
Securities of that series with regard to the Securities of that series
without notice to any Securityholder. However, without the consent of the
Holder so affected, no amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may:
(1) extend the fixed maturity of any Security, reduce
the rate or extend the time for payment of interest on any Security,
reduce the principal amount of any Security or premium, if any, on any
Security;
(2) impair or affect the right of a Holder to
institute suit for the payment of interest, if any, principal or
premium, if any, on the Securities;
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(3) change the currency in which the Securities are
payable from that specified in the Securities or in a Supplemental
Indenture applicable to the Securities;
(4) impair the right, if any, to convert the
Securities into, or exchange the Securities for, other securities or
assets;
(5) reduce the percentage of Securities required to
consent to an amendment, supplement or waiver;
(6) reduce the amount payable upon the redemption of
any Security or change the time at which any Security may or will be
redeemed;
(7) modify the provisions of any Supplemental
Indenture with respect to subordination of the Securities of a series
in a manner adverse to the Securityholders; or
(8) make any change in Section 6.04 or 6.08 or the
fifth sentence of this Section.
It will not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it will be sufficient if the consent approves the
substance of the amendment, supplement or waiver.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment or
supplement to this Indenture, any Supplemental Indenture or the Securities
will comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. A consent to an amendment,
supplement or waiver by a Holder of a Security will bind the Holder and
every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to the Holder's
Security or portion of a Security. For a revocation to be effective, the
Trustee must receive notice of the revocation before the date the
amendment, supplement or waiver becomes effective. After an amendment,
supplement or waiver becomes effective in accordance with its terms, it
will bind every Holder of every Security of every series to which it
applies.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a series of Securities, the Trustee may require the
Holder of a Security of the series to deliver the Holder's Security to the
Trustee, who will place an appropriate notation about the amendment,
supplement or waiver on the Security and will return it to the Holder.
Alternatively, the Company may, in exchange for the Security, issue, and
the Trustee will authenticate, a new Security that reflects the amendment,
supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc. The Trustee will sign any
amendment, supplement or waiver authorized pursuant to Article Two or this
Article Nine if the amendment, supplement or waiver does not adversely
affect the rights, duties or immunities of the Trustee. If it does
adversely affect those rights, duties or immunities, the Trustee may
but need not sign it. In executing any amendment, supplement or waiver
hereunder, the Trustee shall be entitled to receive and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture. The Company may not sign an amendment or supplement until the
amendment or supplement is approved by an appropriate Board Resolution.
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ARTICLE TEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 10.01. Provisions Relating to Conversion or Exchange of Securities.
Any rights which Holders of Securities of a series will have to convert
those Securities into other securities of the Company or to exchange those
Securities for securities of other Persons or other assets, including but
not limited to the terms of the conversion or exchange and the
circumstances, if any, under which those terms will be adjusted to prevent
dilution or otherwise, will be set forth in a Supplemental Indenture
relating to the series of Securities. In the absence of provisions in a
Supplemental Indenture relating to a series of Securities setting forth
rights to convert or exchange the Securities of that series into or for
other securities or assets, Holders of the Securities of that series will
not have any such rights.
ARTICLE ELEVEN
SINKING OR PURCHASE FUNDS
SECTION 11.01. Provisions Relating to Sinking or Purchase Funds. Any
requirements that the Company make, or rights of the Company to make at its
option, payments prior to maturity of the Securities of a series which will
be used as a fund with which to redeem or to purchase Securities of that
series, including but not limited to provisions regarding the amount of the
payments, when the Company will be required, or will have the option, to
make the payments and when the payments will be applied, will be set forth
in a Supplemental Indenture relating to the series of Securities. In the
absence of provisions in a Supplemental Indenture relating to a series of
Securities setting forth requirements that the Company make, or rights of
the Company to make at its option, payments to be used as a fund with which
to redeem or purchase Securities of the series, the Company will not be
subject to any such requirements and will not have any such rights.
However, unless otherwise specifically provided in a Supplemental Indenture
relating to a series of Securities, the Company will at all times have the
right to purchase Securities from Holders in market transactions or
otherwise.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
Indenture or any Supplemental Indenture limits, qualifies or conflicts with
the duties imposed by Sections 310 through 317 of the TIA, the
imposed duties will control.
26
<PAGE> 32
SECTION 12.02. Supplemental Indentures Contract. If any provision of a
Supplemental Indenture relating to a series of Securities is inconsistent
with any provision of this Indenture, the provision of the Supplemental
Indenture will control with regard to the Securities of the series to which
it relates.
SECTION 12.03. Notices. Any notice or communication under or relating to
this Indenture or any Supplemental Indenture will be sufficiently given if
in writing and delivered in person or mailed by first-class mail, certified
or registered, return receipt requested, addressed as follows:
if to the Company: LNR Property Corporation
760 N.W. 107th Avenue, Suite 300
Miami, Florida 33172
Attention: Vice President - Finance
if to the Trustee: The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Administrator
Either the Company or the Trustee by a notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder will be
mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and will be sufficiently given to the
Securityholder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it will not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
If by reason of the suspension of regular mail service, or by
reason of any other cause, it is impossible to mail any notice as required by
this Indenture or any Supplemental Indenture, then any method of notification
which is approved by the Trustee will constitute a sufficient mailing of the
notice.
The Company may set a record date for purposes of determining
the identity of Securityholders entitled to vote or consent to any action by
vote or consent authorized or permitted by Sections 6.04 and 6.05. The record
date will be the later of 30 days prior to the first solicitation of consents or
the date of the most recent list of Holders furnished to the Trustee pursuant to
Section 2.07 prior to the solicitation.
SECTION 12.04. Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders
with respect to their rights under this Indenture or the Securities. Each
of the Company, the Trustee, the Registrar and anyone else will have the
protection of TIA Section 312(c).
27
<PAGE> 33
SECTION 12.05. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action
under this Indenture or any Supplemental Indenture, the Company will
furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signer, all conditions precedent, if any, provided for in this
Indenture or any Supplemental Indenture relating to the proposed action
have been complied with;
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all those conditions precedent have been complied with; and
(3) such other opinions and certificates as may be required by
applicable provisions of this Indenture or the Supplemental Indenture.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture or a Supplemental Indenture
will include (i) a statement that the person making the certificate or opinion
has read the covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in the certificate or opinion are based; (iii) a statement that, in
the opinion of the person giving the certificate or opinion, that person has
made such examination or investigation as is necessary to enable that person to
express an informed opinion as to whether or not the covenant or condition has
been complied with; and (iv) a statement as to whether or not, in the opinion of
that person, the condition or covenant has been complied with. Nothing in this
Section 12.05 will be construed as requiring that the Company furnish to the
Trustee any evidence of compliance with the conditions and covenants provided
for in this Indenture or any Supplemental Indenture other than the evidence
specified in this Section 12.05.
SECTION 12.06. When Treasury Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred
in any direction, waiver or consent, Securities owned by the Company, or
anyone under direct or indirect control or under direct or indirect common
control with the Company will be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the
Trustee will be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee actually knows are so owned will
be so disregarded. Securities so owned which have been pledged in good
faith will not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to the
Securities and that the pledgee is not the Company or a person directly or
indirectly controlling or controlled by, or under common control with, the
Company. Nothing in this Section 12.06 will be construed as requiring that
the Company furnish to the Trustee any evidence of compliance with the
conditions and covenants provided for in the Indenture other than the
evidence specified in this Section 12.06.
SECTION 12.07. Rules by Trustee, Paying Agent, Registrar. The Trustee may
make reasonable rules for action by or at a meeting of Securityholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday,
or a day on which banking institutions are not required to be open in the
State of New York. If a
28
<PAGE> 34
payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and
no interest on the sum being paid will accrue for the intervening period.
SECTION 12.09. Governing Law and Submission to Jurisdiction. The laws of
the State of New York will govern this Indenture, each Supplemental
Indenture and the Securities. The Company submits to the jurisdiction of
the courts of the State of New York sitting in the Borough of Manhattan,
City of New York, and of the United States District Court for the Southern
District of New York, in any action or proceeding to enforce any of its
obligations under this Indenture or any Supplemental Indenture or with
regard to the Securities, and agrees not to seek a transfer of any such
action or proceeding on the basis of inconvenience of the forum or
otherwise (but the Company will not be prevented from removing any such
action or proceeding from a state court to the United States District Court
for the Southern District of New York). The Company agrees that process in
any such action or proceeding may be served upon it by registered mail or
in any other manner permitted by the rules of the court in which the action
or proceeding is brought.
SECTION 12.10. Actions by the Company. Any action or proceeding brought by
the Company to enforce any right, assert any claim or obtain any relief in
connection with this Indenture, any Supplemental Indenture or the
Securities will be brought by the Company exclusively in the courts of the
State of New York sitting in the Borough of Manhattan, City of New York or
in the United States District Court for the Southern District of New York.
SECTION 12.11. No Adverse Interpretation of Other Agreements. Neither this
Indenture nor any Supplemental Indenture may be used to interpret another
indenture, loan or debt agreement of the Company or any Subsidiary. No such
indenture, loan or debt agreement may be used to interpret this Indenture
or any Supplemental Indenture.
SECTION 12.12. Successors. All agreements of the Company in this Indenture,
any Supplemental Indentures and the Securities will bind its successors.
All agreements of the Trustee in this Indenture and any Supplemental
Indentures will bind its successors.
SECTION 12.13. Duplicate Originals. The parties may sign any number of
copies of this Indenture or any Supplemental Indenture. Each signed copy
will be an original, but all of them together will represent the same
agreement.
SECTION 12.14. Table of Contents, Headings, etc. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only. They are
not to be considered a part of this Indenture, and will in no way modify or
restrict any of the terms or provisions of this Indenture.
29
<PAGE> 35
IN WITNESS WHEREOF, the parties to this Indenture have caused
it to be duly executed as of the day and year first above written.
LNR PROPERTY CORPORATION
By:_______________________
Jeffrey P. Krasnoff
President
THE BANK OF NEW YORK
By:_______________________
Name:
Title:
30
<PAGE> 36
EXHIBIT A
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series described in the
within-mentioned Indenture and Supplemental Indenture.
The Bank of New York
as Trustee
Date:
By:_____________________________
Authorized Signatory
<PAGE> 1
Exhibit 5
LETTERHEAD OF ROGERS & WELLS LLP
November 25, 1998
LNR Property Corporation
760 Northwest 107th Avenue
Miami, Florida 33172
Dear Sirs:
We have acted as counsel to LNR Property Corporation ("LNR") in
connection with a registration statement under the Securities Act of 1933, as
amended (the "Registration Statement") relating to possible offerings from time
to time by LNR of (i) its common stock, par value $.10 per share ("Common
Stock"), (ii) its preferred stock, par value $10 per share ("Preferred Stock"),
(iii) its depositary shares representing shares of Preferred Stock ("Depositary
Shares"), (iv) its debt securities (which may be issued in one or more series)
to be issued under an Indenture (the "Indenture") dated as of , 1998 between
the Company and [The First National Bank of Chicago] and supplemental
indentures executed as contemplated by the Indenture ("Debt Securities"), (v)
warrants entitling the holders to purchase Common Stock, Preferred Stock,
Depositary Shares or Debt Securities ("Warrants") and (vi) its guarantees
("Guarantee") of the payment obligations of its subsidiaries under other
securities (collectively, "Securities") at initial offering prices which will
not exceed in total $400,000,000.
Based on the foregoing, and such other examination of law and fact as
we have deemed necessary, we are of the opinion that:
1. When the Board of Directors of LNR authorizes the issuance of
authorized but unissued Common Stock and in accordance with that authorization
that Common Stock (i) is sold for at least its par value as contemplated in the
Registration Statement, or (ii) is issued on exercise of a right to convert Debt
Securities or Preferred Stock, or on exercise of Warrants, which are sold for
more than the par value of the Common Stock (including any amount paid at the
time of conversion or exercise) as contemplated in the Registration Statement,
the Common Stock will be legally issued, fully paid and non-assessable.
2. When the Board of Directors of LNR authorizes the creation and sale
of one or more series of Preferred Stock in accordance with the provisions of
LNR's Certificate of Incorporation relating to the issuance of Preferred Stock
and in accordance with that authorization that Preferred Stock is (i) sold for
at least its par value as contemplated in the Registration Statement or (ii)
issued on conversion of Debt Securities or other series of Preferred Stock, or
on exercise of Warrants, which are sold for more than the par value of the
Preferred Stock (including any amount paid at the time of conversion or
exercise) as contemplated in the Registration Statement, that Preferred Stock
will be legally issued, fully paid and non-assessable.
3. When the Board of Directors of LNR authorizes the creation and sale
of Depositary Shares representing interests in shares of particular series of
Preferred Stock and in accordance with that authorization those Depositary
Shares are (i) sold for at least the par value of the Preferred Stock as
contemplated in the Registration Statement or (ii) issued on conversion of Debt
<PAGE> 2
2
LNR Property Corporation November 25, 1998
Securities or other series of Preferred Stock, or exercise of Warrants, which
are sold for more than the par value of the Preferred Stock (including any
amount paid at the time of conversion or exercise) as contemplated by the
Registration Statement, those Depositary Shares will be legally issued, fully
paid and non-assessable.
4. When the Board of Directors of LNR authorizes the creation of one or
more series of Debt Securities and in accordance with that authorization and
with the Indenture those Debt Securities are (i) sold as contemplated in the
Registration Statement or (ii) sold upon exercise of Warrants which are issued
as contemplated in the Registration Statement, if the interest on those Debt
Securities is not at a rate which violates applicable law, those Debt Securities
will constitute valid and legally binding obligations of LNR.
5. When the Board of Directors of LNR authorizes the issuance of
Warrants which provide for the issuance of Securities upon payment of
consideration equal at least to the par value of the Securities being issued, if
applicable, and which do not contain provisions which violate applicable law,
and in accordance with that authorization those Warrants are issued as
contemplated in the Registration Statement, those Warrants will constitute valid
and legally binding obligations of LNR.
6. When the Board of Directors of LNR authorizes the issuance of
Guarantees of legally binding obligations and in accordance with that
authorization and with the Indenture, those Guarantees are issued as
contemplated in the Registration Statement, those Guarantees will constitute
valid and legally binding obligations of LNR.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ Rogers & Wells LLP
<PAGE> 1
Exhibit 12
COMPUTATION OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED FISCAL YEARS ENDED NOVEMBER 30,
AUGUST 31, ------------------------------------------------------------------
1998 1997 1996 1995 1994 1993
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS FROM CONTINUING OPERATIONS:
Pre-tax income from continuing
operations $ 79,646 $ 72,488 $ 77,467 $ 66,407 $ 53,193 $ 29,021
Adjustments to pre-tax income from
continuing operations:
Minority interest 1,567
Fixed charges 35,897 27,533 20,513 14,692 5,688 3,378
Interest capitalized (1,637) (949)
Adjustment for undistributed earnings
and losses of unconsolidated 50% or
less owned entities (7,493)(1) --(1) --(1) --(1) --(1) --(1)
--------- --------- --------- --------- --------- ---------
"Earnings" $ 107,980 $ 99,072 $ 97,980 $ 81,099 $ 58,881 $ 32,399
========= ========= ========= ========= ========= =========
FIXED CHARGES:
Interest, whether capitalized, and
amortization of debt discounts or
premiums:
Interest incurred $ 34,260 $ 26,584 $ 20,513 $ 14,692 $ 5,688 $ 3,378
Capitalized interest 1,637 949
--------- --------- --------- --------- --------- ---------
"Fixed charges" $ 35,897 $ 27,533 $ 20,513 $ 14,692 $ 5,688 $ 3,378
========= ========= ========= ========== ========= =========
EARNINGS TO FIXED CHARGES 3.0 3.6 4.8 5.5 10.4 9.6
</TABLE>
(1) Distributions are greater than equity in earnings.
<PAGE> 1
Exhibit 23(ii)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
LNR Property Corporation
We consent to the incorporation by reference in this Registration Statement of
LNR Property Corporation on Form S-3 of our reports dated February 3, 1998
(February 18, 1998, as to Note 16), appearing in the Annual Report on Form 10-K
of LNR Property Corporation for the year ended November 30, 1997, and to the
reference to our firm under the heading "Experts" in the Prospectus which is a
part of this Registration Statement.
DELOITTE & TOUCHE LLP
Miami, Florida
November 25, 1998
<PAGE> 1
Exhibit 25.1
=============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of Incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------
LNR PROPERTY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 65-0777234
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
760 Northwest 107th Avenue
Miami, Florida 33172
(Address of principal executive offices) (Zip code)
----------------
Debt Securities
(Title of the indenture securities)
=============================================================================
<PAGE> 2
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
------------------------------------------------------------------------
Name Address
-------------------------------------------------------------------------
Superintendent of Banks of 2 Rector Street, New York,
the State of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 24th day of November, 1998.
THE BANK OF NEW YORK
By: /s/ THOMAS C. KNIGHT
-------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the
Federal Reserve System, at the close of business June 30, 1998, published in
accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 7,301,241
Interest-bearing balances .......... 1,385,944
Securities:
Held-to-maturity securities ........ 1,000,737
Available-for-sale securities ...... 4,240,655
Federal funds sold and Securities pur-
chased under agreements to resell... 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 38,788,269
LESS: Allowance for loan and
lease losses ..................... 632,875
LESS: Allocated transfer risk
reserve........................... 0
Loans and leases, net of unearned
income, allowance, and reserve .. 38,155,394
Assets held in trading accounts ...... 1,307,562
Premises and fixed assets (including
capitalized leases) ................ 670,445
Other real estate owned .............. 13,598
Investments in unconsolidated
subsidiaries and associated
companies .......................... 215,024
Customers' liability to this bank on
acceptances outstanding ............ 974,237
Intangible assets .................... 1,102,625
Other assets ......................... 1,944,777
-----------
Total assets ......................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices ................ $26,930,258
Noninterest-bearing ................ 11,579,390
Interest-bearing ................... 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 16,117,854
Noninterest-bearing ................ 187,464
Interest-bearing ................... 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase. 2,170,238
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 1,310,867
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,549,479
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 46,654
Bank's liability on acceptances exe-
cuted and outstanding .............. 983,398
Subordinated notes and debentures .... 1,314,000
Other liabilities .................... 2,295,520
-----------
Total liabilities .................... 54,018,268
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,385,227
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 51,233
Cumulative foreign currency transla-
tion adjustments ................... ( 37,639)
-----------
Total equity capital ................. 5,265,424
-----------
Total liabilities and equity
capital ............................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
)
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
)
